THE 


PUBLIC  CONSCIENCE 

A  CASE  BOOK  IN  ETHICS 


GEORGE   CLARKE   COX 


UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


THE  PUBLIC  CONSCIENCE 

SOCIAL   JUDGMENTS    IN 
STATUTE   AND   COMMON   LAW 

BY 

GEORGE  CLARKE  COX 


WITH  AN  INTRODUCTION  BY 

RICHARD  C.  CABOT 

PROFESSOR  OF  SOCIAL.  ETHICS  IN   HARVARD   UNIVERSITY 


The  body  of  the  law  is  the  professed  morality  of  states; 
and  that  which  holds  throughout  generations  and  ages, 
essentially  unchanged,  may,  without  impropriety  or 
exaggeration,  be  called  the  actual  morality  of  states. 


NEW  YORK 
HENRY  HOLT  AND  COMPANY 


COPTHIQHT,   1922, 

BY 

HENRY  HOLT  AND   COMPANY 


PRINTED  IN  THE  U.  8.  A. 


r 


ERRATA 


Page  ix,  line  29.     Read    PRESERVATION    OF    PROPERTY 
Intentional  wrong— always  condemned. 

Page  X,  line  34.     Read  also,  under  Taxation,  The  Natural  Law 
in  Property  Offenses  ....  261. 

Page  xi,  line  7,  for  "Method"  read  "Medicine". 

Page  475,  line  8,  for  *'the  State  does   not  interfere"  read  "the 
State  does  interfere." 

Page  475,  line  9,  for  "A   man  may  marry"  read  "A  man  may 
not  marry." 


rmtiTTBD !«  Tim  o.  •.  a. 


A.  M.  C. 

HOME-MAKER,  FRIEND  AND  MATE 

A  LOVER  OF  TRUTH 

THIS  BOOK  IS  DEDICATED 


AUTHOR'S  PREFACE 

The  publication  of  this  book,  finished  some  time  ago, 
has  been  delayed  first  by  the  War  and  then  by  my  own 
preoccupation  with  other  imperative  duties.  Its  com- 
position, while  contemplated  for  over  ten  years,  was 
undertaken  at  the  request  of  the  late  Edward  de  Cop- 
pet,  whose  interest  in  the  scientific  study  of  ethics 
was  profound.  He  gathered  around  him  in  New  York, 
during  the  winter  of  1915-16,  a  notable  group  of  men 
to  make  plans  for  the  establishment  of  a  Research 
Institute  for  the  Scientific  Study  of  Ethics.  It  was 
Mr.  de  Coppet's  idea  to  endow  such  a  research  insti- 
tute; but  his  sudden  and  lamented  death  destroyed 
the  hope  that  such  a  plan  might  be  realized,  at  least  in 
the  near  future. 

One  of  the  men  drawn  into  that  group  was  my  bril- 
liant friend.  Dr.  Elmer  E.  Southard  of  the  Harvard 
Medical  School,  now  dead;  neurologist,  philosopher 
and  psycho-pathologist.  Dr.  Southard  warmly  ap- 
proved of  studying  and  teaching  ethics  by  the  case 
method  and  promised  his  aid  in  providing  abnormal 
cases.    His  sympathy  and  advice  are  here  remembered. 

I  am  indebted  to  another  friend,  Hastings  Lyon, 
Esq.,  of  the  New  York  Bar,  for  many  suggestions  and 
for  aid  in  preparing  a  table  of  cases:  to  Professor 
William  P.  Montague  of  Columbia  University  for  the 


vi  AUTHOR'S    PREFACE 

title  to  this  book:  to  Dean  Roscoe  Pound  of  the  Har- 
vard Law  School  for  his  suggestions  and  warm  interest 
in  the  project  and  for  bringing  it  to  the  attention  of 
Dr.  Richard  C.  Cabot:  through  whose  persuasion  the 
boot  was  finally  made  ready  for  the  press. 

I  wish  to  thank  Professor  Joseph  H.  Beale  for  the 
privilege  of  quoting  from  his  "  Cases  on  Criminal 
Law,"  Richard  Ames,  Esq.,  of  the  Harvard  Law  School, 
for  permission  to  quote  from  his  father's  "  Cases  on 
Torts  "  and  Professor  Richard  T.  Ely  as  well  as  Messrs. 
Macmillan,  for  a  like  privilege  in  use  of  Professor 
Ely's  studies  on  "  Property  and  Contract." 

I  am  grateful  to  the  authorities  of  Columbia  Uni- 
versity for  the  free  use  of  their  University  and  Law 
Libraries  where  much  of  the  book  was  written. 

The  first  chapter  of  this  book  —  now  considerably 
modified  —  appeared  in  April,  1916,  in  the  Journal  of 
Philosophy,  Psychology  and  Scientific  Methods.  Ac- 
knowledgement is  made  to  the  editors  of  that  publica- 
tion for  permission  to  reprint. 

The  idea  of  using  the  case  method  in  the  study  of 
ethics  was  wholly  original  with  me;  but,  after  I  had 
spent  some  years  in  this  study,  I  discovered  Professor 
Levy-Bruhl's  work,  which  supports  the  idea  strongly; 
and  I  feel  proud  to  associate  my  work  with  his  name. 

The  recent  Great  War  will  lend  strong  support  to 
certain  conclusions  which  I  have  drawn ;  but  the  cases 
which  will  be  found  in  the  years  to  come,  when  the 
history  of  that  war  shall  have  been  written  dispassion- 
ately, are  not  now  available. 


AUTHOR'S    PREFACE  vii 

It  is  my  hope  that  this  modest  first  attempt  at  a 
case  book  in  ethics  will  be  found  useful  not  only  to 
students  and  teachers  of  ethics,  but  also  to  students 
and  teachers  of  sociology  and  law  —  and  to  the  general 
public. 

The  world  seems  to  me  to  be  blindly  groping  for  a 
sure  foundation  for  its  moral  concepts.  The  old  cer- 
tainty is  gone.  Men  seem  afraid  that  there  may  be 
found  nothing  to  take  its  place.  I  believe  that  cer- 
tainty will  again  be  attained;  but  that  it  cannot  be 
attained  without  the  same  patient,  widespread,  cooper- 
ative laboratory  method  which  has  characterized  the 
physical  sciences. 

Of  the  imperfections  and  short-comings  of  the  book, 
I  am  well  aware ;  but  it  has  seemed  best  to  put  it  forth 
with  all  its  imperfections  rather  than  wait  longer. 
Many  men  must  work  on  this  problem  before  it  can 
ever  hope  to  be  solved. 

The  efforts  of  most  writers  on  ethics  have  seemed 
to  me  to  be  bent  toward  edification.  One  cannot  be 
truly  edified  until  he  is  truly  informed.  A  lighthouse 
will  not  be  stable,  in  a  dangerous  place,  until  much 
patient  work  has  been  put  where  it  will  be  lost  to 
sight. 

Geo.  Clarke  Cox 

MONTCLAIR,    N.   J. 

May,  1922. 


CONTENTS 

CHAPTEE  PAGE 

Introduction     xi 

I.  Ethics  as  Science  and  as  Art 3 

II.  The  Empirical  Use  of  Cases 34 

III.  Methods 53 

PART  I 

Preservation  of  Life  and  Limb 67 

Some  Excerpts  From  History 75 

Crimes  Against  the  Person 83 

I.  Illegal  —  Always  Reprobated 

Murder 85 

Manslaughter 105 

Wilful  Neglect   110 

II.  Sometimes  Reprobated,  Often  Not 

Accidental 117 

Self-Defense     128 

Assault  and  Battery 132 

Assault  —  Self-Defense    134 

Duel  —  Wager  of  Battle   141 

Dueling 142 

Euthanasia    145 

III.  Legal:    But  Not  Always  Approved  by  the  Group  146 

IV.  Semi-Legal    151 

V.  Doubtful 

Assassination    160 

Statute  and  Common  Law  164 

Attempts  to  Commit  Crimes  or  Misdemeanors  166 

The  Natural  Law  of  Killing  171 

PART  II 

International  Wrong  Always  Condemned 
I.  Directly  Affecting  the  Person 

Burglary     179 


X  CONTENTS 

PAGE 

Robbery  185 

Akson  186 

LAIiCENY  192 

II.  Larceny  Under  Peculiar  Conditions  of  Frontier 

Life    194 

III.  Frauds,  Victims  Deceived 

Swindling 196 

Insurance  Fraud 197 

Cheating    198 

False  Pretenses  199 

rV.  Appropriation  by  Compulsion  —  Not  Physical 

Extortion  201 

Usury 202 

Blackmail    202 

V.  Breaches  of  Trust 

Embezzlement    205 

Bankruptcy  —  Dishonest    208 

Fraudulent  Entry   209 

VI.  Attack  Upon  Rights  op  Property  in  Personality 

Libel  and  Slander 210 

Bigamy     217 

VII.  RioHTs  as  Between  Two  Parties 

Ownership  of  Aerolite  219 

Lien    220 

Trespass    230 

Caveat  Emptor  —  Let  the  Buyer  Beware  235 

Eminent  Domain    236 

Contract     237 

Nuisance  240 

Negligent  Destruction   250 

Property  —  Accidental   or   Negligent   Destruc- 
tion      258 

Recovery  for  Negligence   259 

Taxation    260 

PART  III 

Preservation  of  Secltrtty 

I.  Security  in  Life  and  Limb 

Attack  on  Courts     270 

Authority  of  the  State  Courts     271 

Quarantine      273 

Treason      274 

Mutiny    282 


CONTENTS  xi 

PAGE 

False  Imprisonment 283 

Unfair  Trials  284 

Classes  of  Cases  Which  Have  to  do  With  Neg- 
lect on  the  Part  of  Employers,  etc 285 

Food  Adulteration 293 

Food  Supply  295 

Health  —  Practising  Method  297 

Nuisance  —  Danger  to  Life    298 

Public  Safety  —  Explosives   299 

Carrying  Concealed  Weapons  300 

II.  Security  in  Preservation  of  Property 

Counterfeiting  304 

False  Entry 306 

Interference  With  Mails   307 

Blue  Sky  Laws  309 

Miscellaneous  —  (6)    Rebating    311 

Conspiracy  in  Business 312 

Strikes  and  Picketing  314 

Inventions,  Patents,  etc 318 

Personal  —  (c)  Adultery 320 

Seduction    322 

Reputation  —  (d)  Libel  323 

Libel    325 

Libel  —  or  Near  Libel  326 

III.  Public  Order  (Decency)  327 

Decency  332 

Inciting  to  Murder  and  Rebellion  333 

Decency    334 

Sunday  Laws  337 

Selling  Liquor 342 

Neglect  of  Education   343 

Public  Order  and  Peace   344 

Offence  Against  the  Common  Weal  347 

The  Natural  Law  of  Offences  Against  Security 349 


PART  IV 

Preservation  of  Liberty 

Provisions  of  the  Constitution  of  the  United  States 

With  Respect  to  Liberty     357 

Definition  of  Liberty     361 

Public  Expressions  Regarding  Liberty  From  Va- 
rious Sources     362 


xii  CONTENTS 

PAGE 

I.  Interference  With  Bodily  Freedom 

Slavery    364 

Peonage    366 

II.  Interference  With  Freedom  of  Movement   (a) 

False  Imprisonment    371 

Habeas  Corpus    378 

Passports  and  Registration  of  Strangers 379 

Freedom  of  Movement   380 

Right  of  Assembly    381 

III.  Interference  With  Freedom  of  Action.  —  Police 
Regulations 

Police  Power  —  Licenses    386 

Equal  Protection  —  Liquor  License    390 

Police  Regulations  (2) 

Labor  Unions   393 

Police  Power  in  General 400 

Trust    Regulations  —  Monopoly    in    Restraint 

of  Trade   404 

Conspiracy  —  Monopoly    408 

Hours  op  Labor 411 

Blacklisting    416 

Contract  and  Blacklisting   420 

Restraint  of  Trade 427 

Limits  to  Property    431 

Franchises    432 

Eminent  Domain    437 

Public  House 441 

Contract  ("Labor  Unions)    443 

Property  Rights  in  Means  op  Livelihood  451 

Liberty  —  Trade    452 

IV.  Inter}- erence  With  Freedom  in  Personality 

Suffrage    455 

Liberty  in  Family  Relations   462 

Association    465 

Speech  —  Birth  Control    468 

Miscellaneous    469 

The  Natural  Law  of  Liberty 470 

Index  of  Cases 481 


INTRODUCTION 

I  believe  that  Mr.  Cox  has  written  an  epoch-mak- 
ing book,  which  deserves  to  alter  the  tone  and  method 
of  ethical  teaching.    My  reasons  for  this  faith  are: 

1.  That  the  idea  is  essentially  new  (in  this  field). 

2.  That  it  has  come  to  dominate  the  teaching  of  law, 

medicine  and  other  studies  not  fundamentally 
different  from  ethics  in  their  aim. 

3.  That  it  has  signal  advantages  in  the  field  of 

ethical  teaching. 

I  cannot  name  a  single  text  book  of  ethics  used  today 
which  is  based  on  the  case  method.  Books  on  casuis- 
try, have  a  somewhat  different  aim.  They  give  us 
answers  to  the  question,  "  What  should  one  do  or  ad- 
vise? "  in  various  imaginary  situations  presenting 
moral  problems.  They  do  not  (so  far  as  I  know)  offer 
fragments  of  real  history  and  ask  us  independently  to 
analyse  them.  They  lack  the  flavor  of  actuality  and 
the  stimulus  of  a  call  to  action. 

Illustrations,  I  imagine,  every  teacher  of  ethics  and 
every  book  on  ethics  provides.  But  cases  are  more 
than  illustrations,  for  the  student  and  not  the  teacher 
decides  what  the  case  illustrates.  The  teacher's  illus- 
trations belong  to  him  and  obey  his  ideas.    But  ethical 


xiv  INTRODUCTION 

cases,  such  as  this  book  supplies,  are  nobody's  property 
and  often  manifest  in  class  discussion  their  own  inde- 
pendent vitality. 

The  case  method  which  Mr.  Cox  is  (so  far  as  I  know) 
the  first  to  employ  in  ethical  teaching,  has  been  used 
in  the  Harvard  Law  School  since  1870  and  at  the 
Harvard  Medical  School  since  1894.  It  is  used  exten- 
sively in  the  Harvard  School  of  Business  Administra- 
tion and  to  some  extent  in  the  teaching  of  logic  (Dr. 
Sheffer)  and  of  economics.  It  is  the  method  of  ex- 
perience, for  it  seeks  to  bring  the  student  face  to  face 
with  concrete  experiences  from  which  somebody  has 
already  learned  something  in  the  school  of  life.  Mr. 
Cox  himself  used  it  in  his  ethical  teaching  at  Dart- 
mouth College  and  owing  to  his  kindness  I  have  been 
able  to  use  some  of  his  unpublished  cases  in  my  own 
work  with  Harvard  undergraduates.  I  am  confident 
that  it  is  at  least  as  valuable  in  ethics  as  it  is  in  law 
and  medicine,  sharing  with  them  certain  obvious  ad- 
vantages and  possessing  also  its  own  peculiar  merits 
for  ethics.    Let  me  illustrate: 

(a)  It  keeps  a  large  class  of  students  busy  and  inter- 
ested. A  good  lecturer  can  keep  several  hundred  inter- 
ested but  not  busy.  They  are  too  passive.  The 
lecturer  does  most  of  the  work  and  gets  most  of  the 
profit.  If  he  throws  out  questions  into  the  class,  the 
advantage  is  chiefly  for  the  few  who  answer,  rarely 
for  the  majority  who  are  silent.  With  a  small  class 
one  can  keep  everyone  busy  in  discussion.  But  with 
a  large  class  —  one  hundred  or  more  —  this  is  almost 


INTRODUCTION  xv 

impossible.  In  the  laboratory  where  each  student  has 
his  own  specimen  or  experiment  to  attend  to,  many 
are  busy  at  once,  but  many  teachers  are  needed  for 
supervision  if  the  class  is  large. 

Case  teaching  gives  each  student  his  own  specimen 
(a  legal,  medical,  economic,  or  ethical  problem)  on  a 
sheet  of  paper  and  demands  that  he  analyse  it,  experi- 
ment with  it  and  render  judgments  upon  it  in  answer 
to  the  teacher's  questions.  Each  man  is  kept  busy 
with  something  tangible  and  can  learn  something  then 
and  there  by  his  own  analysis  and  reasoning,  even  if 
he  is  not  called  up  by  the  teacher.  The  method  is 
almost  as  useful  with  150  students  as  with  20.  As  a 
means  whereby  one  teacher  can  call  out  continuous 
labor  from  many  students  at  once,  it  is  almost  as  good 
as  an  examination;  yet  it  can  be  given  once  or  twice 
a  week  throughout  the  college  year. 

(6)  The  teacher  and  the  class  face  together  a  con- 
crete reality.  The  teacher  cannot  entirely  control  the 
case  as  he  controls  his  own  illustrations  during  a  lec- 
ture. A  vividly  written  case  may  rear,  kick  and  run 
away.  Quite  unexpected  interpretations  or  problems 
are  sometimes  discovered  by  the  students  who  then 
quiz  the  teacher  as  he  more  often  quizzes  them.  All 
this  adds  to  the  interest  and  vitality  of  the  hour.  The 
teacher  is  not  handing  out  all  the  wisdom  nor  himself 
bearing  all  the  burdens  of  the  exercise.  Sometimes  the 
case  almost  teaches  itself,  —  an  ideal  result.  The 
student  attains  a  real  experience  —  something  that 
takes  root  in  memory  —  whether  the  teacher's  inter- 


xvi  INTRODUCTION 

pretation  seems  profitable  or  not.  He  studies  with  his 
class  as  well  as  for  them.  They  must  observe  and 
reflect  then  and  there.  His  place  is  to  egg  them  to 
this  labor  and  to  suggest  useful  tools. 

(c)  For  at  first  the  student  may  be  puzzled  how 
to  attack  the  situations  presented.  He  can  be  helped 
to  pick  them  to  pieces  with  the  tools  of  analysis 
and  then  to  reconstruct  them  in  terms  of  a  theory  or 
solution. 

"  Boil  down  and  restate,  "  "  Enumerate  the  dramatis 
personce,  "  "  Propose  alternative  solutions,  "  "  Drag  up 
to  consciousness  the  principles  and  the  data  taken  for 
granted  in  your  judgment, "  "  Show  up  the  links  in 
your  chain  of  reasoning. "  Such  well  worn  tools  as 
these  come  to  be  used  almost  instinctively  when  the 
student  has  been  led  to  apply  them  again  and  again 
and  to  see  with  pleasure  how  well  they  work  on  all 
sorts  of  cases. 

Observation,  reasoning  and  decision,  —  that  is  all 
there  is  to  law,  medicine,  geology,  economics,  ethics 
or  theology,  and  what  we  want  is  to  see  the  student 
gain  sldll  and  sagacity  by  the  actual  use  of  these  tools 
upon  the  raw  materials  of  experience.  By  the  case 
method  we  can  actually  see  that  he  does  it  and  not 
merely  hope  that  he  will  do  it  in  his  room  or  in  future 
cramming. 

{d)  By  keeping  back  his  own  opinion  and  any 
existing  decisions  by  others  until  the  students  have  all 
evolved  and  recorded  theirs,  the  teacher  can  add  some- 
thing of  the  "  hide  and  seek  motive  "  to  the  interest  of 


INTRODUCTION  xvii 

the  case  itself.  In  law  we  can  announce  after  the  dis- 
cussion the  judge's  or  the  jury's  decision;  in  medicine, 
we  have  the  revelation  of  the  autopsy.  In  ethics  we 
have  nothing  so  cogent  and  decisive.  But  when  legal 
cases  are  used,  as  in  this  book,  one  has  at  least  the 
verdict  of  public  opinion  as  interpreted  by  judge  and 
jury.  Moreover,  the  students  are  almost  always  in- 
terested to  know  in  the  end  what  the  teacher  thinks,  — 
even  if  they  disagree.  Thus  one  works  towards  a 
climax,  as  one  does  in  a  novel  or  a  detective  story,  and 
there  is  competition  in  the  solutions  or  the  predictions 
offered  by  all  who  take  part. 

Suspense  and  competition  are  valuable  adjuvants 
when  we  want  students  to  work  hard.  In  lecturing 
and  in  ordinary  general  discussion  they  are  hard  to 
command.    In  case  teaching  they  spring  up  naturally. 

Law  cases,  such  as  make  up  the  bulk  of  this  book, 
have  the  advantage  of  a  definite  decision  (wise  or 
unwise)  at  the  end  of  each.  The  corresponding  dis- 
advantage is  that  they  cannot  cover  the  whole  ground 
of  ethics.  Many  poignant  ethical  problems  never  get 
into  court  and  cannot  be  authoritatively  decided.  No 
one  is  more  aware  of  this  limitation  in  the  present 
book  than  Mr.  Cox.  Any  collection  of  suitable  cases 
is  an  enormous  labor.  Naturally  he  has  not  been 
able  to  extend  his  field  of  search  in  all  possible  direc- 
tions. But  he  has  broken  out  the  first  path.  It  is  for 
the  rest  of  us,  following  his  method,  to  collect  other 
groups  of  cases  from  industry,  from  the  adventures  of 
family  life  or  from  the  tangled  experiences  of  medicine 


xTiii  INTRODUCTION 

and  of  social  work.  Ethical  cases  arise  on  the  athletic 
field,  aboard  ship,  on  the  stock  exchange,  in  the  artist's 
studio,  in  trolley  cars.  Obviously  no  one  man  can 
follow  up  all  these  clues.  Many  people  must  collabo- 
rate and  will  be  tempted,  I  believe,  to  do  so,  when  they 
have  read  Mr.  Cox's  book.  For  he  has  started  a  fox 
that  many  can  hunt,  though  with  the  signal  advantage 
that  this  fox  all  can  catch,  while  no  damage  is  done 
to  the  animal!  I  predict  that  many  other  case  books 
of  ethics  will  follow  this  one  and  that  in  a  few  years 
we  who  are  trying  to  teach  ethics  shall  look  back  in 
wonder  at  our  foolishness  that  so  obvious  and  useful 
a  method  never  occurred  to  us  or  was  used  by  us  till 
he  suggested  it. 

Mr.  Cox  has  kept  his  own  personality  and  his  own 
views  in  the  background.  He  gives  us  the  cases  with 
little  of  comment  or  interpretation.  That  is  for  each 
teacher  and  every  pupil  to  supply  in  his  own  way  and 
by  the  light  of  such  principles  as  he  can  find.  To  some 
timid  teachers  this  will  seem  a  drawback.  But  in  the 
long  run  I  believe  it  will  increase  the  usefulness  of  the 
book  as  a  collection  of  human  documents  which  each 
can  interpret  in  his  own  way.  In  class-room  use  I  take 
it  the  teacher  will  work  out  beforehand  suggestive 
questions  and  sidelights  on  each  case,  often  giving  out 
these  questions  with  the  case  as  a  guide  and  stimulus 
to  the  class. 

Mr.  Cox's  practice  of  asking  students  themselves  to 
collect  and  bring  to  class  cases  more  or  less  similar 
to  his  own  seems  to  me  admirable  both  for  the  students 


INTRODUCTION  xix 

who  collect  them  and  for  the  wider  public  which  these 
cases  may  later  come  to  serve.  Thus  the  class  which 
uses  the  case  method  will  itself  be  used  by  the  case 
method  to  extend  its  usefulness  and  its  variety. 


Richard  C.  Cabot 


Boston,  Mass. 
May,  1922. 


THE  PUBLIC  CONSCIENCE 


"  Doubtless,  the  most  effectual  mode  of  showing  how  the 
sciences  of  Ethics  and  Politics  may  be  constituted,  would 
be  to  construct  them;  a  task,  it  needs  scarcely  be  said,  I 
am  not  about  to  undertake.  But  even  if  there  were  no 
other  examples,  the  memorable  one  of  Bacon  would  be 
sufficient  to  demonstrate,  that  it  is  sometimes  both  possible 
and  useful  to  point  out  the  way,  though  without  being 
oneself  prepared  to  adventure  far  into  it."  ^ 

"  We  advocate  a  method  .  .  .  which  considers  objec- 
tively the  given  social  reality,  studying  it  in  the  civilization 
in  which  we  live,  and  comparing  this  with  others  which  we 
may  be  able  to  know.  In  a  word,  we  demand  that  one  use, 
in  so  far  as  the  character  proper  to  social  reality  permits, 
the  same  method  which  has  shown  itself  so  fruitful  in 
sciences  which  deal  with  physical  reality.  Hence,  a 
'  psychological '  or  '  moral '  study  of  the  sentiments,  how- 
ever interesting  it  may  be  in  certain  respects,  has  no  part 
in  the  science  with  which  we  are  engaged.  Our  directing 
principle  is  to  relate  facts,  duly  analyzed,  to  their  constant 
laws,  and  effects  duly  stated,  to  the  forces  which  produce 
them.  If  the  instincts,  needs,  and  sentiments,  more  par- 
ticularly the  sentiments  called  moral,  are  of  the  number 
of  these  forces,  a  study  of  given  social  reality  will  make 
us  acquainted  with  the  fact,  and  that,  too,  in  the  only  way 
which  can  be  called  scientific,  namely,  by  the  exact  state- 
ment and  measurement  of  their  cfTccts."  ^ 

"  A  man  who  thinks  in  a  different  fashion  from  others, 
even  about  problems  which  do  not  immediately  touch  upon 
artion  and  which  every  one  can  consider  without  passion, 
provokes  among  those  others  a  certain  uneasiness,  an 
astonishment  which  is  not  free  from  ill  will."  ^ 

1  J.  S.  Mill,  "  Lopir,"  Vol.  II,  p.  419,  10th  od. 

2  L.  L('vy-Bruhl,  "  La  Morale  et  la  Science  des  Moeurs,"  p.  225. 

3  Ibid.,  p.  249. 


CHAPTER   I 
ETHICS    AS    SCIENCE    AND    AS    ART 


Almost  any  undertaking  may  be  and  has  been  de- 
scribed as  a  science,  just  as  almost  any  one  may  and 
does  call  himself  a  professor. 

When  I  propose  to  consider  ethics  as  a  science  it  is 
in  the  narrowed  sense  of  "  ordered  knowledge  of  natural 
phenomena  and  of  the  relations  between  them."  I 
have  in  mind  also  (a)  the  saying  of  Svante  Arrhenius 
that  "science  implies  measurement,"  (b)  the  practice 
of  experimental  research  instituted  by  Francis  Bacon,^ 
and  (c)  Galileo's  practice  of  searching  for  the  "  how  " 
rather  than  the  "  why  "  of  things. 

We  need  no  account  of  scientific  method.  All  the 
educated  world  knows  what  it  is  and  admires  its  effi- 
cacy.   It  has  had  its  hard  days  in  the  past  when  its 

1  It  need  hardly  be  said  that  the  "  Baconian  pure  induction 
or  mere  observation  "  has  been  left  far  behind  in  what  we,  none 
the  less  truly,  term  the  inductive  methods  of  modem  science. 
Mill  has  warned  us  that  "  the  conclusions  of  theory  cannot  be 
trusted,  unless  confirmed  by  observation;  nor  those  of  observation, 
unless  they  can  be  affiliated  to  theory.  It  is  the  accordance  of  these 
two  kinds  of  evidence  separately  taken  —  the  consilience  of  a  priori 
reasoning  and  specific  experience  —  which  forms  the  only  sufficient 
ground  for  the  principles  of  any  science  so  "  immersed  in  matter," 
dealing  with  such  complex  and  concrete  phenomena,  as  "  Ethology," 
for  which,  see  below,  p.  6. 

3 


4  THE    PUBLIC    CONSCIENCE 

devotees  were  not  only  treated  as  impious,  but  were 
even  destroyed  in  various  delicate  ways.  But  why 
consider  that  that  which  is  "  the  ordered  knowledge  of 
natural  phenomena  "  can  possibly  be  applied  to  ethics? 
There's  the  rub!  for  ethics  has,  heretofore,  been  for- 
bidden territory  to  science. 

Now  the  various  natural  sciences,  such  as  physics, 
chemistry,  geology,  biology,  etc.,  have  all  had  their 
theological  and  metaphysical  stages  before  they 
emerged  into  the  positive  stage.  Every  science  is  ipso 
facto  positivistic  and  naturalistic.  There  is,  however, 
a  positivistic  temper  against  which  philosophers  and 
theologians  have  justly  protested.  It  is  the  temper  of 
that  science  which  does  not  recognize  the  rock  whence 
it  is  hewn;  for  all  the  sciences  have  been  gradually 
separated  from  the  more  inclusive  if  less  defined  disci- 
pline known  as  philosophy.  The  natural  sciences  are 
taught  in  many  places  today  as  natural  philosophy, 
and  it  were  well  that  we  should  always  recognize  the 
significance  of  this  connection. 

Physics  and  chemistry,  as  the  most  exact  of  the 
natural  sciences,  and  hence  the  most  dogmatic,  are 
quite  apt  to  forget  their  origin  and  to  overlook  the 
fact  that  they  are  based  upon  unproved  assumptions. 
Their  deeper  questions  are  still  questions  for  philos- 
ophy. Still,  one  must  acknowledge  that,  so  long  as 
they  were  under  the  tutelage  of  theology  or  meta- 
physics, they  made  little  progress;  and  the  same  may 
be  said  of  the  more  recently  emancipated  sciences, 
which,  moreover,  tend  to  split  up  into  subordinate 


ETHICS    AS    SCIENCE    AND    AS    ART        5 

sciences.  Thus  general  biology  divides  into  zoology 
and  botany,  physiology,  psychology,  psychiatry,  etc., 
and  each  of  these  in  turn  becomes  more  productive 
when  it  has  set  up  a  household  of  its  own.  There  are 
problems  in  each  of  the  sciences  which  remain  philo- 
sophic problems  —  some  would  say,  chiefly  because 
they  are  unsolved.  Be  it  so.  There  are  many  soluble 
problems  in  ethics,  I  believe,  and  it  is  to  those  that  I 
would  see  men  turn  their  attention  today. 

II 

Now  many  writers  on  ethics  have  spoken  of  it  as  a 
science;  but  they  have  not  treated  it  as  such.  Many 
have  added  greatly  to  our  exact  knowledge  in  ethical 
fields  who  yet  have  not  submitted  the  entire  subject 
of  ethics  to  scientific  method.  Some  recent  writers 
have  been  intensely  practical  in  their  applications  of 
ethics  and  franker  on  some  biologic  subjects  than  any 
one  heretofore,  who  are  yet  quite  unscientific  in  their 
total  attitude. 

The  greatest  name  which  may  be  cited  in  support 
of  this  sort  of  enterprise  is  that  of  John  Stuart  Mill; 
but  it  is,  of  course,  quite  foreign  to  its  character  to 
claim  anything  on  the  ground  of  authority.  We  may 
then  say,  better,  that  the  argument  of  Mill  in  the 
Sixth  Book  of  his  "  System  of  Logic  "  has  set  forth  in 
masterly  fashion  the  reasons  for  according  the  same 
sort  of  treatment  to  the  study  of  man  in  society  as 
has  been  given  to  his  physical  nature.     He  says:  " 

2  "  System  of  Logic,"  Book  VI,  p.  418,  Vol.  II,  10th  ed. 


6  THE    PUBLIC    CONSCIENCE 

"  If  there  are  some  subjects  on  which  the  results  ob- 
tained have  finally  received  the  unanimous  assent  of 
all  who  have  attended  to  the  proof,  and  others  on 
which  mankind  have  not  yet  been  equally  successful; 
on  which  the  most  sagacious  minds  have  occupied 
themselves  from  the  earliest  date,  and  have  never 
succeeded  in  establishing  any  considerable  body  of 
truths,  so  as  to  be  beyond  denial  or  doubt;  it  is  by 
generalizing  the  methods  successfully  followed  in  the 
former  inquiries,  and  adapting  them  to  the  latter,  that 
we  may  hope  to  remove  this  blot  on  the  face  of 
science  "  ;  and  he  adds  that  "  the  remaining  chapters 
(of  the  '  Logic  ')  are  an  endeavor  to  facilitate  this  most 
desirable  object."  He  insists  that  there  is  or  there 
may  be  a  science  of  human  nature.  "  Any  facts  are 
fitted  to  be  a  subject  of  science  which  follow  one  an- 
other according  to  constant  laws";  and  he  finds  that 
the  laws  of  the  formation  of  character  are  the  principal 
object  of  scientific  inquiry  into  human  nature,  these 
being  deduced  from  the  general  laws  of  mind.  "  The 
laws  of  mind  ^  .  .  .  compose  the  universal  or  abstract 
portion  of  the  philosophy  of  human  nature;  and  all 
the  truths  of  common  experience,  constituting  a  prac- 
tical knowledge  of  mankind,  must,  to  the  extent  to 
which  they  are  truths,  be  results  or  cansequences 
of  these." 

Mill's  "  Science  of  Ethology  "  is  a  science  of  char- 
acter and  of  its  formation  —  it  corresponds  to  the  art 
of  education;  and  it  will  be  evident  from  my  strict 

3  Ibid.,  p.  448. 


ETHICS    AS    SCIENCE    AND    AS    ART        7 

separation  of  the  science  of  ethics  from  the  art  of 
ethics  why,  in  spite  of  his  authority  and  in  spite  of  his 
good  will  toward  such  an  enterprise  as  this,  it  is  not 
Mill  who  has  most  clearly  formulated  the  method  of 
procedure  for  a  science  of  ethics. 

The  only  writer,  whom  I  know,  who  has  proposed  a 
strictly  scientific  programme  for  ethics  —  if  we  except 
Comte  on  account  of  his  general  attitude  —  is,  signifi- 
cantly enough,  L.  Levy-Bruhl.*  In  his  book  "  La 
Morale  et  la  Science  des  Moeurs,"  ^  he  proposes  a  plan 
of  study  to  which  I  can  give  almost  unqualified  adhe- 
sion ;  though  I  would  supplement  it  in  significant  ways. 
Durkheim  ®  is  a  kindred  spirit. 

The  work  of  these  two  brilliant  and  honest  minds 
has  been  strangely  overlooked  in  English-speaking 
circles.  Nothing  more  significant  for  ethics  since  the 
days  of  Jeremy  Bentham  and  the  Mills  has  been 
written  than  the  work  of  Levy-Bruhl.  It  is  a  complete 
programme  for  ethical  science,  a  work  which  has  gone 
into  five  editions  in  France;  yet  it  is  practically  un- 
known and  certainly  untaught  in  this  country.  There 
is  hardly  a  mention  of  Levy-Bruhl  and  Durkheim  in 
contemporary  ethical  literature  in  spite  of  their  great 
influence  in  Europe.  In  the  International  Journal  of 
Ethics,  during  the  entire  period  of  its  existence,  I  can 

*  The  biographer  of  Comte. 

5  Translation  by  Elizabeth  Lee.    London,  1915. 

8  fimile  Durkheim,  "  De  la  Division  du  Travail  Social "  and 
"  Les  Regies  de  la  Methode  Sociologique."  Cf.  also  my  article  in 
the  Journal  of  Philosophy,  Psychologij  and  Scientific  Methods, 
Vol.  X,  p.  337,  "  The  Case  Method  in  the  Study  and  Teaching  of 
Ethics." 


8  THE    PUBLIC    CONSCIENCE 

find  but  two  brief  and  utterly  inadequate  reviews  of 
their  works,  works  of  recognized  power  but  which  pre- 
sent a  totally  new  viewpoint  in  ethics. 

The  "  Ethics  "  of  Dewey  and  Tufts  was  written  as 
a  textbook,  not  as  a  preliminary  book  in  the  scientific 
study  of  ethics.  Its  three  sections  embrace  a  his- 
torical treatment  of  human  customs  and  manners/ 
an  analysis  and  presentation  of  classic  theories  in  rela- 
tion to  the  real  problems  of  life,  and  a  final  section 
which  might  be  called  a  programme  for  social  reform. 
It  is  not  avowedly  inductive  and  naturalistic;  but  it 
is  more  sympathetic  to  the  scientific  attitude  than  any 
actual  performance  within  my  knowledge.  None  of 
the  previously  named  writers  apparently  had  the  inten- 
tion of  making  experimental  studies. 

Westermarck  ^  has  proposed  ''  to  study  moral  con- 
sciousness as  a  fact."  Sutherland  ^  has  written  of  the 
genesis  of  morality.  Professor  Sharp  '°  has  done  valu- 
able work  in  casuistical  studies.  Hobhouse  "  has  made 
a  comparative  study  of  ethics.  None  of  them,  I  think, 
has  initiated  a  real  science  of  ethics,  though  scientific 
method  has  been  used  by  all,  and  all  have  gathered 
valuable  material  which  the  new  science  not  only  may, 
but  must  use. 

'  There  is  no  substitute  for  the  French  word  moeurs  —  although 
Professor  Sumner  has  nearly  translated  it  in  folk  ways. 

8  Edw.   Westermarck,  "  The   Origin   and   Development   of   the 
Moral  Ideas." 

8  A.    Sutherland,    "  The    Origin    and    Growth    of    the    Moral 
Instinct." 

'"  F.  C.  Sharp,  "  A  Study  of  the  Influence  of  Custom  on  the 
Moral  Judgment."     Bulletin  of  the   Univer/dty  of   Wisconsin,  1908. 
'1  L.  T.  Hobhouse,  "Morals  in  Evolution." 


ETHICS    AS    SCIENCE    AND    AS    ART        9 

My  purpose  is  so  to  separate  the  study  of  ethical 
material  as  subject  of  science  from  any  conclusions 
which  may  he  drawn  from  it,  that  different  investi- 
gators may  at  least  have  a  chance  to  know  what  it 
is  that  they  are  agreeing  or  disagreeing  about. 

Ill 

The  greatest  obstacle  in  the  way  of  a  scientific  study 
of  ethics  is  its  usual  classification,  with  logic  and  es- 
thetics, as  a  normative  science/" 

Now  the  course  of  the  centuries  has  seen  the  produc- 
tion of  not  one,  but  many  sciences  of  ethics  on  this 
basis,  which  is  to  say,  no  science  at  all.  If  by  norma- 
tive we  mean  merely  ideal,  then  we  may  ask  v/hether 
our  science  does  not  become  at  once  an  art.  The 
standards  are  somehow  already  at  hand.  All  that  re- 
mains is  to  apply  them  in  the  best  and  most  practical 
way.  But  if  it  is  a  question  how  men  come  to  have 
these  various  standards,  these  "  types  of  ethical 
theory,"  then  we  have  a  genetic  inquiry  to  begin  with 
and  we  may,  by  classification,  formation  of  hypotheses, 
experiment,  etc.,  form  a  true  science  of  ethical  theory, 
as  we  may  have  a  science  of  anything  whatsoever. 

But,  I  take  it,  this  is  not  the  meaning  of  those  who 

12  Rashdall,  "Theories  of  Good  and  Evil,"  Vol.  II,  p.  414. 
"  Logic,  esthetic,  and  ethic  are  sometimes  spoken  of  as  normative 
sciences,  i.e.,  sciences  which  set  up  standards  or  which  deal  not  sin&ply 
with  what  is,  but  with  what  ought  to  be.  They  determine  the 
principles  upon  which  we  distinguish  between  the  true  and  false, 
right  and  wrong,  judgments  about  the  true,  the  beautiful,  and  the 
good." 


10  THE    PUBLIC    CONSCIENCE 

protest  against  ethics  as  a  natural  science  and  claim 
that  it  is  rather  normative.  Their  protest  is  against 
the  intrusion  of  the  naturalistic  method  at  all.  Seeing 
the  absolutely  imperative  character  of  the  standard 
when  achieved  or  realized,  it  is  conceived  to  have  a 
Minerva-like  directness  and  timelessness  of  source. 
This  is  deceptive.  Norms  are  in  all  essential  respects 
attained  in  the  same  fashion  as  natural  laws.  The 
mere  fact  that  the  norm  says  "  ought "  and  the  law 
says  "  does/' "  does  not  wholly  differentiate  them. 
The  natural  science  method  is  as  applicable  to  the  dis- 
covery of  the  growth  of  norms  as  it  is  to  the  discovery 
of  laws,  though  it  is  true  that  the  individual  or  group 
cognizant  of  these  norms  has  not  attained  them  by  an 
inductive  process.  It  has  them,  and  then  it  attempts 
to  justify  them.  It  is  just  my  contention  that  a  dis- 
interested inductive  study  is  essential  to  the  discovery 
of  the  "  how  "  of  their  acquisition.  One  may  observe 
likewise  that  the  "  norms  "  of  physics  are  as  imperative 
to  the  intelligence  as  the  norm  of  ethics  is  to  the  will. 
The  name  "science"  is  not  trade-marked;  and  we 
may  speak  of  Christian  science  and  normative  science 

13  A  careful  distinction  must  be  made  and  kept  in  mind  between 
the  law  which  describes  how  things  do  behave  and  the  law  which 
imposes  the  will  of  the  lawgiver. 

"  If  ethics  {la  morale)  has  at  the  same  time  to  prescribe  and 
to  legitimize  its  prescriptions  rationally,  if  it  has  to  be  at  the  same 
time  normative  and  theoretic,  its  imperatives  will  have  to  be  laws. 
Thence  arises  the  ambiguous  and  bastard  concept  of  the  moral  law, 
which,  on  its  theoretic  side,  approximates  the  law  of  nature,  and 
on  its  normative  side,  law  understood  in  the  social  and  judicial 
sense."  —  Levy-Bruhl. 


ETHICS    AS    SCIENCE    AND    AS    ART      11 

if  we  wish;  but  these  are  not  natural  sciences,  and 
neither  of  them  claims  to  be  such.  The  characteristic 
of  a  normative  science  is  that  its  principles  are  postu- 
lated. It  makes  no  difference  whether  one  be  an 
intuitionist  ,a  utilitarian,  or  an  evolutionary  moralist, 
since  these,  however  different  in  other  ways,  are  alike 
in  their  method  of  acquiring  the  initial  position.^* 
They  get  it  a  priori  every  time;  and  it  is  not  surpris- 
ing that,  after  the  lapse  of  twenty-five  centuries,  the 
different  theories  are  no  nearer  together  than  they  were 
at  their  separate  beginnings. 

Wundt,^^  recognizing  "  the  universal  applicability  of 
the  purely  descriptive  standpoint  to  all  departments 
of  human  knowledge "  to  be  unquestionable,  says, 
"  we  should  still  take  into  consideration  that  the  esti- 
mate of  the  value  of  facts  is  also  itself  a  fact  and  a 
fact  which  must  not  be  overlooked  when  it  is  there  to 

1*  E.  Durkheim,  "  De  la  division  du  travail  social,"  p.  18.  "  II  est 
evidemment  impossible  qu'on  puisse  jamais  trouver  la  loi  qui 
domine  un  monde  aussi  vaste  et  aussi  varie,  si  Ton  ne  commence 
par  I'observer  dans  toute  son  etendue.  Est-ce  ainsi  que  procedent 
les  moralistes?  Tout  au  contraire,  ils  croient  pouvoir  s'elever  a 
cette  loi  superieure  d'un  seul  bond  et  sans  intermediare.  lis  com- 
mencent  par  raisonner  comme  si  la  morale  etait  toute  entiere  a 
creer,  comme  s'ils  se  trouvaient  en  presence  d'une  table  rase  sur 
laquelle  ils  peuvent  a  leur  gre  edifier  leur  systeme,  comme  s'il 
s'agissait  de  trouver,  non  une  loi  qui  resume  et  qui  explique  un 
systeme  de  faits  actuellement  realisees,  mais  le  principe  d'une  legis- 
lation morale  a  instituer  de  toutes  pieces.  A  ce  'point  de  vue  il  n'y 
a  pas  a  distinguer  entre  les  ecoles.  U argumentation  des  empiristes 
n'est  ni  moins  hdtive  ni  moins  sommaire  qiie  celle  des  rationalistes : 
la  maxime  de  I'utile  n'a  pas  ete  obtenue  plus  que  les  autres  a  I'aide 
d'un  methode   vraiment  inductive."     (Italics  mine.) 

15  W.  Wundt,  "  The  Facts  of  the  Moral  Life."  (Transl.)  Page  5. 
Swan,  Sonnenschein,  and  Company.    London.    1897. 


12  THE    PUBLIC    CONSCIENCE 

see.  A  necessary  condition  of  any  such  estimate  is  the 
existence  of  human  free  will.  By  free  will  we  mean 
here  not  a  metaphysical  faculty,  but  merely  the  empir- 
ically given  capacity  of  choice  between  various  ac- 
tions." Faites  vos  jeux,  Messieurs!  Here  we  are 
again!  I  suppose  that  we  shall  never  rid  ourselves 
entirely  of  this  Old  Man  of  the  Sea;  but  he  must  be 
locked  up,  temporarily  at  least,  if  there  is  ever  to  be 
any  progress  in  moral  science.  More  of  him,  later, 
when  we  touch  upon  "  The  Freudian  Wish "  of 
Professor  Holt. 

"  A  normative  science  or  a  science  of  human  norms  " 

—  what  can  these  words  possibly  mean?  If  we  have 
our  norms  to  begin  with,  there  will  be  nothing  left  ex- 
cept application  of  them,  and  all  ethics  will  become 
casuistry.  But  if  norms  are,  as  Wundt  implies,  very 
much  like  natural  laws,  obtained  in  the  last  analysis 
in  the  same  way,  one  can  not  possibly  have  any  objec- 
tion, scientific  though  his  temper  may  be,  to  norms 
as  such. 

Every  man  who  has  studied  the  historical  ethical 
systems  must  have  felt  a  sympathy  with  them  all. 
Each  has  made  some  contribution  of  great  worth,  and 
the  normative  character  of  ethical  standards  is  beyond 
question.  The  final  command  is  "  ought."  That, 
among  other  things,  differentiates  ethics  from  physics; 
but  man  does  not  respond  to  the  "  ought  "  invariably. 
When  he  fails  to  respond,  he  suffers  remorse  —  perhaps 

—  but  often  no  other  penalty;  when  he  tries  to  dis- 
obey the  physical  law  he  is  invariably  injured  or  de- 


ETHICS    AS    SCIENCE    AND    AS    ART      13 

stroyed.  The  physical  law  holds  for  all  men ;  the  par- 
ticular ethical  law  holds  only  (and  as  just  indicated) 
for  those  who  accept  it;  others  violate  its  provisions 
with  impunity  except  where  these  coincide  with  the 
principles  of  all  other  ethical  systems.  And,  in  this 
case,  we  hold,  in  agreement  with  Wundt,  that  these 
provisions  have  the  character  of  a  natural  law.^^ 

It  would  be  rash  and  impertinent  to  say  that  all 
ethical  speculation  in  the  past  had  been  fruitless ;  but 
it  might  be  ventured  that  whatever  merit  the  ethical 
systems  of  the  past  have  had  is  owed  rather  to  the 
necessary  reactions  of  men  in  society  than  to  the  wis- 
dom of  ethical  principles  intuited  by  brilliant  minds. 
One  does  not  make  a  man  any  better  by  explaining 
hedonism  to  him  nor  any  more  virtuous  by  letting  him 
discover  that  he  is  a  natural  intuitionist.  And  the 
curious  fact  has  often  been  pointed  out  that,  under 
Stoic  and  Epicurean,  with  quite  opposite  and  contra- 
dictory theories,  there  were  almost  identical  practical 
principles  of  action ;  that  is  to  say,  an  Epicurus  or  an 
Aurelius  would  have  advised  the  young  to  do  prac- 
tically identical  things."    The  reason  for  this  is  evi- 

16  "  A  human  law  states  what  is  expected  to  be  done,  or  what  is 
usually  done;  but  the  expectation  may  not  be  realized,  the  custom 
may  be  broken  through.  Laws  of  nature  are,  in  the  strictest  sense, 
inviolable,  i.e.,  there  is  no  meaning  in  talking  of  violating  them. 
When  a  law  of  nature  appears  to  be  violated,  this  only  shows  that 
it  has  not  been  correctly  stated.  .  .  .  When  people  speak  of  break- 
ing laws  of  nature,  they  mean  breaking  some  maxim  of  health, 
prudence,  etc.,  based  upon,  or  supposed  to  be  based  upon,  a  knowl- 
edge of  the  way  in  which  nature  works."  —  D.  G.  Ritchie,  "  Natural 
Rights,"  p.  73. 

1^  I  do  not  fail  to  recognize  that  stoicism  has  usually  been  a 


14  THE    PUBLIC    CONSCIENCE 

dent.  Their  practical  rules  do  not  grow  out  of  their 
initial  principles,  but  are  rather  the  result  oj  an  un- 
noticed inductive  process  carried  on  by  all  men,  which 
has  its  fruits  in  the  practical  wisdom  of  action  of  the 
most  unphilosophic.  It  has  been  suggested  to  me  that, 
however  similar  Stoic  and  Epicurean  may  be  in  their 
practical  conduct,  there  are  none  the  less  ethical  ideals 
which  lead  men  to  widely  different  conduct,  e.g.  St. 
Augustine  and  Walt  Whitman  not  only  led  different 
lives,  but  these  lives  were  the  legitimate  outcome  of 
their  ethical  philosophy.  This  is  perfectly  true. 
There  are  some  consistent  men  in  the  world!  And 
for  all  Emerson's  contempt  of  it,  consistency  is  a  very 
great  and  unusual  virtue. 

I  have  not  meant  to  imply  that  all  ethical  systems 
were  fundamentally  the  same  and  would  legitimately 
eventuate  in  the  same  conduct.  I  believe  that  there  is 
some  ground  common  to  them  all;  but  this  is  not  the 
place  to  explain  why  I  so  believe. 

"  The  normative  method,"  if  one  may  use  such  an 
expression,  is  characterized  by  a  great  deal  of  hyposta- 
tization.  Such  terms  as  "  the  right,"  "  the  good," 
"  justice,"  "  duty,"  "  freedom,"  are  of  frequent  occur- 
rence. Ideal  standards  of  conduct  are  planned  which 
might  be  possible  if  all  beings  (upon  whatever  meta- 
physical basis  conceived)  were  themselves  perfect  to 
begin  with,  but  which  become  grotesque  when  we 


social  preservative,  whereas  the  deliberate  adoption  of  epicurean 
principles  has  usually  been  followed  by  degeneration.  Offset  this 
by  the  noble  life  of  Epicurus  himself.  Cf.  also  Levy-Bruhl  op.  cit., 
pp.  35-36. 


ETHICS    AS    SCIENCE    AND    AS    ART      15 

realize  that  they  are  to  be  carried  out  by  people  who 
have  imperfect  bodies,  faulty  heredity,  and  a  reluctant 
environment.  No  one  but  Kant  (and  a  few  of  his 
sternest  spiritual  mates)  has  ever  promulgated  the 
doctrine  that  one  must  do  "  the  good  "  even  if  all  re- 
sults of  so  doing  were  manifestly  bad;  and  Kant  had 
to  take  refuge  in  an  unrealizable  world  in  order  to  es- 
cape the  charge  of  utter  unreason.  The  doctrine  that 
nothing  is  good  but  the  Good  Will  leads  straight  to 
antinomianism.     Its  potency  is  all  destructive. 

And,  even  if  men  could  agree  on  some  one  of  the 
many  historical  ethical  theories,  how  far  would  this 
advance  us  on  our  difficult  way  of  finding  out  how  to 
behave  wisely  in  society?  For  this,  I  take  it,  is  our 
ultimate  object.  I  cannot  believe  that  any  one,  no 
matter  how  wedded  to  a  particular  ethical  theory,  can 
fail  to  recognize  this.  The  ultimate  good  may  be  what 
you  will,  —  pleasure,  self-realization,  the  greatest  good 
of  the  greatest  number,  or  the  will  of  God  —  but  in 
any  case  its  practical  manifestation  must  be  in  rela- 
tions with  men  in  some  society;  and  I  think  that 
students  —  professional  students  —  of  ethics  have 
largely  lost  sight  of  this  fact.  They  leave  the  applica- 
tion of  their  theories  to  clergymen  and  social  reformers, 
thinking  their  duty  to  be  merely  to  discover  the  correct 
principles  upon  which  all  should  act.  Doubtless  this 
would  be  a  sufficient  task  if  it  were  performed.  But 
it  is  not  performed;  and  one  of  the  reasons,  at  least, 
why  it  is  not  performed  is  that  the  students  have  not 
borne  in  mind  what  the  ultimate  object  of  the  study 


16  THE    PUBLIC    CONSCIENCE 

was.  It  is  always  possible  to  consider  ethics  a  branch 
of  esthetics,  and  there  are  those  who  limit  ethics  en- 
tirely to  its  esthetic  side.  It  may  be  that  they 
are  right.  In  any  case  one  would  by  no  means  exclude 
this  possibility  from  his  investigation.  That  would  be 
to  become  partisan  and  propagandist  at  the  start. 
Still  there  can  be  no  protest  against  the  assumption 
that  ethics  deals  with  the  conduct  of  men  in  society 
and  that  the  chief  object  of  it,  scientific  or  dogmatic, 
is  to  improve  the  condition  of  man,  to  make  society 
both  more  rational  and  more  happy.  Now  every  his- 
torical ethical  theory  has  contributed  something  of 
final  value.  A  society  dominated  by  any  one  of  them 
would  be  dignified  and  worthy,  —  it  would  have  a  sort 
of  completeness  —  but  in  the  case  of  intuitional  sys- 
tems, at  least,  it  would  certainly  be  static;  and,  if 
evolution  and  the  Heracleitan  tradition  of  constant 
change  have  taught  us  nothing  else,  they  have  con- 
vinced us  that  no  principles  which  are  not  susceptible 
of  constant  adaptation  to  new  conditions  can  possibly 
be  of  the  maximum  value.  And  so  we  reject  the  norm- 
ative ethical  tradition  en  bloc  as  essentially  unfitted 
to  our  purpose. 

But,  aside  from  the  difficulty  of  choosing  between 
the  various  normative  ethical  traditions,  and  aside 
from  the  objection  just  made  that  the  normative  is 
frequently  static,  there  remains  the  possibility  that 
there  may  be  no  universal  basis  of  ethics.  The 
common  prejudice  that  there  must  be  a  universal  law 
of  conduct,  a  position  stated  most  unequivocally  by 


ETHICS    AS    SCIENCE    AND    AS    ART      17 

Kant,  is  probably  closely  connected  with  the  nearly 
universal  monism  which  characterizes  the  general 
public  even  more  than  the  philosophical  world.  With- 
out declaring  for  monism  or  pluralism,  the  possibility 
that  our  investigation  may  lead  to  the  latter,  must  be 
foreseen;  and,  in  that  case,  we  may  be  certain  that 
there  can  not  be  any  universal  rules  of  conduct,  but 
that  conduct  will  always  have  to  be  adapted  to  the 
special  conditions  under  which  men  live.  Moreover, 
there  will  not  only,  possibly,  be  many  ethical  stand- 
ards, but  none  of  them  will  be  static.  Men  hate 
change  almost  as  much  as  they  love  it,  and  it  is  a  risky 
business  to  announce  beforehand  that  there  may  be 
no  absolute  abiding-place  for  the  soles  of  our  feet; 
but  the  quest  of  the  scientific  in  ethics  is  not  for 
the  timid. 

IV 

One  of  the  few  reviews  of  Durkheim  describes  his 
work  as  nominally  sociology,  but  actually  ethics;  and 
it  has  been  an  objection  to  the  case  method  that  it  is 
nominally  ethics,  but  actually  sociology.^^  There  is 
no  need  to  be  disturbed  by  criticisms  so  little  inte- 
grated. "  The  way  to  resume  is  to  resume,"  said  a 
trenchant  personality  of  specie  payment,  after  the 
Civil  War.  The  way  to  make  ethics  a  science  is  to 
begin  the  work.  The  many  controversies  of  the  past 
ages  have  done  little  to  teach  men  how  to  behave 
wisely  in  society.  Controversy  will  never  do  this. 
There  is  a  certain  amount  of  destructive  criticism  in- 

^^  Cf.  Levy-Bruhl,  op.  cit.,  pp.  64-65. 


18  THE    PUBLIC    CONSCIENCE 

separable  from  any  new  enterprise;  and  all  criticism 
is  deemed  destructive  by  those  criticized.  But  there 
comes  a  time  when  it  may  fairly  be  demanded  of  those 
who  criticize  an  older  order  that  they  do  something 
constructive.  It  has  seemed  to  me  that  I  could  aid 
the  cause  of  this  new  science,  which  is  not  mine  but 
that  of  all  who  think  with  me,  not  by  further  critical 
statements  of  what  ought  to  be  done,  but  by  doing 
something,  however  slight,  in  the  way  of  exposition. 
Hence  the  greater  part  of  this  volume  consists  of  cases 
of  conduct  so  arranged  that  they  speak  for  themselves ; 
so  certified  that  they  are  not  my  examples  merely,  but 
the  examples  of  all  who  care  to  use  them.  A  certain 
vagueness  and  formlessness  is  inseparable  from  such 
beginnings  and  must  be  anticipated  and  forgiven. 
Nothing  could  have  seemed  a  more  unlikely  subject  for 
science  than  the  weather;  but  meteorology  is  playing 
an  increasingly  important  role  in  modern  life,  even  in 
commercial  life.  We  may  laugh  at  the  weather  man 
but  when  storm  signals  are  up  we  run  for  harbor  or 
get  in  our  hay  as  fast  as  possible. 

This  science  of  ethics  will  make  great  use  of  sociology 
with  its  tremendously  valuable  and  significant  array 
of  facts  about  the  influence  upon  conduct  of  geography, 
of  race,  of  climate,  of  economic  conditions;  with  its 
statistical  method  so  admirably  developed.  The  em- 
bryo sciences  of  criminology  and  penology,  offspring 
of  sociology,  will  be  especially  valuable,  but  none  of 
these  is  ethics.  The  nature  of  a  science  is  determined, 
not  by  its  material,  but  by  its  purposes.    All  sciences 


ETHICS    AS    SCIENCE    AND    AS    ART      19 

must  study  bodies;  there  is  nothing  else  for  them  to 
study.  Science  is  necessarily  materialistic  qua  science. 
For  it  the  classic  rule  is  Hobbes's  "  All  that  exists  is 
body;  all  that  occurs  is  motion."  But  this  materialism 
must  not  be  misunderstood.  It  is  not  the  final  phil- 
osophic word,  it  is  only  a  method;  and  this  method 
can  apply  only  to  bodies.  Ethics  will  study  the 
attained  results  of  sociology  and  like  sciences  in  order 
to  know  how  individual  men  —  not  their  wills  or  per- 
sonalities, but  the  men  as  organisms,  —  act  upon  one 
another:  and  also  how  various  groups  —  not  their 
principles  avowed  or  tacit,  but  the  groups  as  groups  — 
act  upon  one  another.  We  want  to  find  out  what  the 
individual  Thomas  Brown  did  to  John  Smith  under 
various  conditions,  what  France  did  to  England,  or  the 
United  States  to  Panama;  and  this  in  their  total  rela- 
tions, for,  as  has  recently  been  said  of  biology,  the 
entire  organism  must  be  considered. 

We  want  also  to  find  out  what  were  the  judgments 
of  the  group  to  which  they  belonged,  for  the  purposes 
of  the  judgment,  through  the  recognized  authorities 
of  that  group.  Every  group  to  which  any  man  be- 
longs has  already,  in  some  fashion,  formulated  its 
definite  ethical  standards,  whether  those  of  church, 
state,  municipality,  or  of  family,  race,  or  merely  a 
social  or  political  club.^^  Any  infraction  of  these 
standards  is  an  offense  against  the  group  and  is  pun- 

13  "  Morals  are  '  givens.'  It  is  a  fact  that  for  the  average  con- 
sciences of  our  civilization,  for  example,  certain  ways  of  acting 
appear  obligatory,  others  forbidden,  still  others  as  indifferent. 
There  is  no  room  for  '  edicts '  determining  the  rules  of  moral  prac- 


20  THE    PUBLIC    CONSCIENCE 

ished,  as  any  signal  devotion  to  them  is  rewarded,  in 
a  conspicuous  fashion.  These  judgments,  for  the  state, 
are  formulated  in  the  decisions  of  courts;  and  law 
today  is  not  only  studied,  but  taught  by  the  considera- 
tion of  these  particular  judgments.  At  least  it  is  so 
taught  in  the  United  States.  Any  widespread  scien- 
tific consideration  of  ethics,  however,  must  not  only 
study  cases  as  in  the  United  States,  but  it  must  also 
study  the  judgments  made  in  those  countries  where 
the  Roman  Law  is  the  model  rather  than  the  Common 
Law  of  England  and  her  dependencies.  There  is  an 
evident  analogy  between  the  method  of  the  Roman 
Law  and  the  method  of  intuitional  ethics.  The  case 
system  in  ethics  must  follow,  primarily,  the  case  sys- 
tem in  law  of  this  country.  Its  use  of  cases,  however, 
will  be  for  a  quite  different  purpose.  It  will  not  be 
concerned  to  differentiate  between  first  and  second 
degree  murder,  between  burglary  and  larceny,  between 
grand  and  petit  larceny,  between  arson  and  accidental 
burning,  etc.;  it  will  not  deal  with  procedure  as  such 


tice,  in  the  name  of  theory.  These  rules  are  the  same  sort  of  reality 
as  other  social  facts,  a  reality  which  may  not  with  impunity  be 
misconstrued."  —  Levy-Bruhl,  op.  cit.,  p.  99. 

"  For  a  normal  individual,  living  in  any  society  whatsoever, 
our  own  for  example,  there  is  imposed  a  social  reality  which  existed 
before  his  time  and  which  will  survive  him.  He  knows  neither  its 
origin  nor  its  structure.  Obligations,  interdicts,  customs,  laws,  even 
usages  and  conventions  —  he  must  conform  to  all  these  prescriptions 
under  pain  of  divers  sanctions,  sometimes  exterior  to  himself,  some- 
times internal,  more  or  less  determined,  more  or  less  diffuse,  which 
yet  make  themselves  felt  in  the  most  incontestable  fashion  by  the 
effects  which  they  produce  and  by  the  intimidation  which  they 
exercise."  —  Ibid.,  p.  192. 


ETHICS    AS    SCIENCE    AND    AS    ART      21 

at  all;  but,  taking  the  identical  facts  in  each  case  from 
the  law  records,  it  will  seek  simply  to  show  exactly 
what  happened,  in  what  the  offense  consisted,  what 
the  authorities  said  about  it,  how  far  they  held  the 
person  responsible  for  his  actions  and  exactly  what 
penalty  was  imposed.  Cases  should  be  taken  chiefly 
from  records  of  higher  courts  in  order  to  avoid  the 
obvious  objection  that  many  decisions  of  lower  courts 
are  reversed  and  are  never  considered  to  be  law.'° 
These  cases  will  be  grouped  by  similarity  of  offense 
and  conditions;  and  great  care  will  be  taken  to  indi- 
cate whether  a  judgment  was  made  a  few  centuries  ago 
or  at  present,  whether  in  England  or  America,  whether 
in  Massachusetts  or  in  Arkansas,  whether  in  a  com- 
munity dominated  by  strong  religious  or  racial  feeling 
or  not,  whether  during  times  of  war,  or  threatened  war, 
or  in  times  of  peace.  From  law  cases  alone  much  is 
to  be  learned  of  those  principles  which  actually  do 
govern  men  in  society. 

But  a  supplementary  and  more  difficult  field  is  to 
be  investigated  next;  more  difficult,  not  in  essence, 
but  because,  i^i  it,  it  is  harder  to  get  at  the  facts.  I 
refer  to  the  judgments  of  groups  whose  records  are  not 

20  The  Supreme  Court  of  the  United  States  of  America  has  re- 
versed itself  —  The  House  of  Lords  has  probably  done  the  same 
thing.  There  is  no  conceivable  decision  which  will  not  conceivably 
be  reversed.  We  can  never  be  sure  that  we  have  reached  the  final 
irrevocable  decision.  This  is  simply  a  matter  of  fact,  of  observation. 
It  is  possible,  of  course,  that  some  decisions  never  will  be  reversed, 
but  we  cannot  know  this.  The  bearing  of  this  fact  upon  a  theory 
of  knowledge  is  quite  obvious;  but  the  fact  itself  needs  no  apology. 
It  is  theories  of  knowledge  that  need  apologizing  for. 


22  THE    PUBLIC    CONSCIENCE 

carefully  kept  and  are  not  open  to  the  public,  such 
as  the  actions  of  corporations,  of  churches,  of  educa- 
tional institutions,  of  families,  of  private  clubs,  and 
loosely  knit  social  or  political  groups.  These  are  not 
compelled  by  any  law  to  keep  accurate  records.  When 
some  action  of  theirs  is  of  so  serious  a  nature  that 
they  are  sued,  either  by  civil  authorities  or  by  private 
persons,  their  records  are  often  found  to  be  incomplete 
or  to  have  disappeared  altogether.  Officers  prove  to 
have  faulty  memories.  "  I  don't  know  "  is  a  frequent 
answer  to  questions;  and  the  suspicion  in  the  minds 
of  court  and  general  public  that  the  man  is  lying  has 
no  immediate  cogency  because  it  can  not  be  justified. 
Groups  of  all  kinds,  through  their  appointed  officers, 
frequently  give  no  reason  at  all  for  their  actions,  deny- 
ing the  pertinence  of  an  inquiry,  or  else  assigning 
reasons  evidently  false,  but  not  provably  false. 

How  shall  we  get  at  the  real  judgments  of  groups 
which  have  no  formal  records,  or  whose  records  are 
notoriously  inexact  or  untrue?  One  way  is  to  use  our 
imaginations,  —  if  we  have  any,  —  use  the  artist's 
method  of  painting  what  we  see.  This  might  be  of 
value  if  there  were  any  way  of  getting  rid  of  the  per- 
sonal factor.  That  there  is  no  such  way  at  present 
known  is  obvious.  Robert  Browning's  groat  poem 
"  The  Ring  and  the  Book  "  is  probably  the  greatest 
psychological  study  that  has  ever  been  made  of  the 
various  judgments  of  different  people  upon  the  same 
set  of  facts  —  and  it  requires  a  reader  of  more  than 
usual  sympathy,  patience  and  discernment  to  discover 


ETHICS    AS    SCIENCE    AND    AS    ART      23 

what  it  was  that  Browning,  even,  took  to  be  the  ulti- 
mate truth  of  the  Pompilia  tragedy.  Such  a  method 
can  have  no  scientific  value  at  all. 

The  search  for  judgments  must  be  pursued  with 
scrupulous  care.  The  "  heart "  motive  may  only  be 
studied  by  the  psycho-analytic  methods  of  Freud,  — 
unsatisfactory,  like  Touchstone's  Audrey,  but  the  beet 
we  have. 

These  are  diflficulties,  but  they  are  not  greater  than 
the  difiiculties  which  anatomy,  physiology,  and  histol- 
ogy have  to  face,  and  these  latter  have  successfully 
surmounted  many  of  their  obstacles.  Then,  finally, 
there  are  the  loose,  floating,  intangibles;  like  gossip, 
"  public  opinion,"  etc.,  which  are  chiefly  valuable  as 
clues,  since  they  can  not  be  presented  in  evidence. 

I  have  elsewhere  called  such  a  study  as  this,  the 
physics  of  ethics.^^  The  study  of  cases  of  conduct,  as 
above  outlined,  must,  in  my  judgment,  form  the  core 
of  any  future  scientific  ethics.  It  is  the  proper  be- 
ginning and  logically  precedes  other  studies  contribu- 
tory to  such  a  science.  Such  a  study  of  cases  by  no 
means  excludes  the  work  of  Professor  Sharp  which, 
while  casuistical  in  character,  is  yet  always  dealing 
with  actual  cases  referred  to  the  tribunal  of  the  con- 
science, rather  than  to  any  external  authority  or  power. 
The  authorities  of  groups  generally  mete  out  the  same 
rewards  and  punishments  to  members,  regardless  of 

-1  I  find  that  this  expression  is  practically  used  by  both  Comte 
and  Levy-Bruhl.  I  used  it  in  the  first  article  I  wrote  on  this  subject 
in  ignorance  of  that  fact. 


24  THE    PUBLIC    CONSCIENCE 

their  ethical  standards  or  ideals.  The  theory  is  that 
this  is  always  done,  men  are  equal  before  the  law; 
but  in  fact  there  are  many  exceptions.  For  example, 
Quakers  are  nearly  always  excused  from  military  serv- 
ice or  police  duty  while  no  such  tenderness  is  shown 
to  Presbyterians  or  Methodists. 

Next  in  importance  comes  the  study  of  biological 
facts  —  not,  necessarily,  of  biology  as  such.  Suppose 
that  one  has  some  ideal  of  human  conduct,  such  as 
Jesus  or  Socrates  or  the  Magnanimous  Man  of  Aris- 
totle or  the  Stoic  Gentleman,  and  wishes,  not  only  to 
conform  his  own  life  to  it,  but  also  to  bring  about  an 
approximation  to  it  on  the  part  of  society.  He  has 
been  brought  up  under  a  psychology  which  assumes 
a  will,  separable  from  the  body  and  not  subject  to  the 
laws  of  the  body.  He  assumes  that  such  a  will  can 
be  changed  by  appeals,  by  the  force  of  example,  by 
submission,  turning  the  other  cheek,  etc.;  and  there 
is  just  enough  truth  in  these  generalizations  to  make 
them  plausible. 

Now  let  such  a  man  make  a  comparative  study  of 
the  nervous  system.  He  will  discover  that  there  can 
be  no  action  and  no  thought,  since  thought  is  an  action 
too,  without  a  definite  reaction  of  the  nervous  system 
to  a  stimulus  which  must  always  be  initiated  from 
without  the  organism.''  Moreover,  while  all  human 
organisms  are  more  or  less  alike  —  in  fact,  very  much 

22  More  exactly,  from  without  the  nervous  system.  The  initiated 
will  not  need  to  be  told  what  I  mean  and  I  do  not  want  to  clog  the 
argument  with  an  explanation  here. 


ETHICS    AS    SCIENCE    AND    AS    ART      25 

alike  —  nevertheless  there  are  characteristic  differences 
between  them;  and,  given  the  same  stimulus,  there  will 
inevitably  be  different  reactions  —  including  thoughts 

—  especially  if  one  or  other  of  these  nervous  systems 
be  abnormal.^^  He  will  find  that,  if  there  are  certain 
lesions  of  the  brain,  or  certain  diseases  of  the  spinal 
cord,  there  are  whole  ranges  of  action  —  and  thought 

—  utterly  impossible  to  the  being  thus  afflicted.  This 
is  not  imagination ;  the  psychopathic  wards  of  our  hos- 
pitals are  teeming  with  corroborative  material.  And, 
so  far  as  I  know,  there  is  no  remedy  for  any  affliction 
with  such  a  basis. 

The  bearing  of  such  facts  as  these  upon  a  science 
of  ethics,  upon  questions  of  what  duty  and  responsi- 
bility are,  is  all  too  plain.  But,  some  one  may  object, 
we  have  always  held  free  from  responsibility  the  very 
young,  idiots,  and  the  insane.  There  is  nothing  new 
in  this.  No,  nothing  essentially  new,  in  very  truth! 
It  is  strange,  however,  that  so  few  have  ever  con- 
sidered its  significance.  It  has  been  there  to  see  for 
centuries;  but  now,  the  careful  observations  of  re- 
sponses to  particular  situations,  coupled  with  minute 
autopsies  of  the  unfortunate,  have  made  it  plain  to 
the  meanest  intelligence  that  there  are  hundreds  of 
thousands  of  human  beings  who  can  by  no  possibility 
ever  do  what  is  expected  of  them  by  society. "^^  Society 
must  give  over  expecting  such  things. 

23  I  am  omitting,  for  the  sake  of  clearness  again,  any  reference 
to  the  influence  of  the  total  organism;  but  this  can  not  be  omitted 
in  any  complete  account  of  the  matter. 

2*  Cf.  Levy-Bruhl,  op  dt.,  pp.  261,  262. 


26  THE    PUBLIC    CONSCIENCE 

Compare  now,  with  such  facts  as  the  above,  the 
equally  striking  facts  uncovered  by  sociological  plus 
biological  studies  of  the  effects  of  heredity  and  the 
possibilities  of  eugenics.  Take  the  hackneyed  com- 
parisons of  the  Juke  family  with  its  terrible  fruit  of 
criminals,  prostitutes,  and  degenerates  to  several  gen- 
erations and  the  Jonathan  Edwards  family  with  its 
glorious  fruit  of  scholars,  publicists,  philanthropists, 
successful  and  honored  men  of  affairs,  and  one  sees 
why  some  men  are  praised  and  exalted  and  others  are 
abased.  The  working  out  of  the  Mendelian  law  is  one 
of  the  most  significant  things  in  the  history  of  biol- 
ogy; an  apparently  inexorable  process  is  indicated. 
The  theory  that,  by  an  appeal  to  the  will  or  by  the 
grace  of  God,  the  meanest  wretch  may  turn  to  a  life 
of  righteousness  and  honor,  vanishes  in  thin  air. 

The  modern  comparative  study  of  religion  and  of 
religious  psychology  has  brought  to  light  many  facts 
of  great  importance  for  a  science  of  ethics.  It  is  quite 
apparent  that,  however  different  men's  reactions  may 
be  to  the  same  stimulus,  yet,  given  a  group  training 
of  one  kind,  it  is  quite  as  easy  for  men  to  grow  up  with 
the  religious  ideas  of  Mohammedanism,  Buddhism, 
Christianity  or  Paganism,  to  be  Presbyterians  or 
Roman  Catholics  or  Jews;  and  that  the  consciences  of 
men  are  dominated  by  the  traditions  in  which  they 
have  been  bred.  One  finds  criminals  and  saints  among 
all  these  classes.  Their  consciences  justify  them  ac- 
cording to  the  religious,  ecclesiastical,  political,  or 
social  traditions  of  their  environment. 


ETHICS    AS    SCIENCE    AND    AS    ART      27 

This  is  the  proper  place  for  the  study  of  casuistry  — 
as  objective  as  any  study,  under  right  conditions.  But, 
again  it  may  be  objected,  the  "  normal  man  "  will  act 
always  and  can  act  always,  according  to  duty.  Who 
is  the  "  normal  man  "  and  how  is  normality  to  be  de- 
termined? Some  one  (was  it  Pascal?)  once  shrewdly 
remarked,  merely  from  observing  mankind,  that  we 
were  all  a  bit  mad  at  times.  There  is  more  than  a 
little  truth  in  this  statement.  And  the  studies  in  re- 
cent years  by  Professor  Theodore  Flournoy,  of  Geneva, 
and  Dr.  Morton  Prince,  of  Boston,  on  multiple  person- 
alities, show  how  abnormality  of  still  another  kind 
may  be  found  even  in  those  whose  nervous  systems  are 
not  overtly  diseased  or  defective. 

Enough  has  been  said  to  indicate  the  fields  in  which 
we  may  look  to  find  new  material  for  a  scientific  in- 
vestigation of  the  problems  of  duty  and  of  obligation  ; 
for  it  must  never  be  forgotten  that  ethics  deals  pri- 
marily with  such  problems.  Ever  since  man  has  been 
rational  at  all,  he  has  learned  not  to  hold  responsible 
any  one  who  could  not  help  himself.  Even  the  law, 
with  all  its  rigidity  and  apparent  brutal  indifi"erence 
to  capacity,  has  recognized  in  principle,  and  in  occa- 
sional practice,  that  some  people  could  not  be  punished 
by  the  state  because,  in  strict  fact,  they  were  not 
persons.  And  now  we  are  learning  that  the  number 
of  those  who  are,  either  at  times  or  all  the  time,  irre- 
sponsible, is  enormously  greater  than  we  had  suspected. 
The  discussion  of  what  to  do  with  them  belongs  under 
Ethics  as  an  Art,  to  which  we  now  turn. 


28  THE    PUBLIC    CONSCIENCE 


The  ancient  controversy  over  the  relation  between 
the  theoretical  and  the  practical  will  not  be  here  re- 
vived. It  is  a  dead  issue  nowadays  for  all  but  a  very 
few.  All  men  recognize  that  the  pursuit  of  "  pure 
science "  has  brought  in  its  wake  untold  practical 
blessings  to  the  world;  and  most  men  agree  that  it  is 
by  the  pursuit  of  "  pure  science "  without  ulterior 
commercial  motive,  that  we  are  most  likely  to  get 
these  blessings.  The  dispute  is  settled  by  the  dis- 
covery that  there  is  no  possible  separation  of  the  theo- 
retical and  the  practical  except  in  a  purely  formal  way. 
Theory  always  eventuates  in  practice,  practice  becomes 
dull  and  inoperative  unless  constantly  vivified  by 
theory;  and,  moreover,  it  always  proceeds  upon  some 
theory. 

Scientific  ethics  is,  potentially,  applied  ethics.  Man- 
kind would  be  very  little  interested  in  ethics  if  such 
a  study  were  not  expected  to  have  very  definite  prac- 
tical effect  in  influencing  the  conduct  of  men  in  society. 
The  Robinson  Crusoe- Alexander  Selkirk  kind  of  specu- 
lation regarding  the  possible  morals  of  a  solitary  being 
who  must  always  remain  solitary,  is  idle  and  vain. 
It  may  be  left  safely  to  those  who  like  it. 

Now,  given  the  ethical  theory  of  any  people,  race, 
state,  or  church;  these  have  not  done  so  badly  in 
application.  The  "  line  upon  line,  line  upon  line,  pre- 
cept upon  precept,  precept  upon  precept,  here  a  little 
and  there  a  little  "  plan  is  admirably  effective  —  up  to 


ETHICS    AS    SCIENCE    AND    AS    ART      29 

a  certain  point.  The  force  of  example,  leading  to 
imitation ;  the  power  of  secret  orders,  and  the  influence 
upon  the  imagination  of  initiations,  sacraments,  and 
decorations,  the  importance  of  taking  men  while  they 
are  young  and  plastic  if  one  would  mold  them  to  any 
pattern,  —  these  have  all  been  well  known,  though  not 
scientifically  known,  to  the  past  ages. 

There  are  many  practical  devices  for  influencing 
men  to  follow  any  particular  ethics,  which  grow  out 
of  the  studies  indicated  in  section  four,  above.  There 
are  —  according  to  the  newspapers !  —  operations  upon 
the  skull  which  turn  criminals  into  honest  men.  The 
thing  is  at  least  plausible.  The  mere  investigation, 
by  competent  school  physicians,  of  the  physical  condi- 
tion of  children,  with  especial  reference  to  sight,  hear- 
ing, and  the  presence  of  adenoids,  is  worth  much  moral 
preachment  and  persuasion;  and  is  more  generally 
effective.  The  study  of  the  hookworm  disease  ^^  and 
the  campaign  for  its  eradication  by  the  Rock&feller 
Foundation  have  moral  consequences  absolutely  in- 
calculable and  all  for  good,  if  we  do  not  criticize  the 
accepted  standards  of  our  generation;  probably  they 
are  for  good  on  any  standard. 

But  by  far  the  most  important  agency  for  bringing 
about  any  scheme  of  ethics  already  existing  and  ac- 
cepted is  that  which  is  revealed  in  Professor  Edwin  B. 
Holt's  little  book,  "  The  Freudian  Wish."     This  book 

25  For  a  statement  regarding  the  beneficial  effects  of  biological 
study,  see  the  presidential  address  of  Dr.  C.  W.  Eliot  in  Science, 
December  31,  1915. 


30  THE    PUBLIC    CONSCIENCE 

contains  a  good  deal  of  Freud  and  more  of  Holt,  while 
the  combination  strongly  suggests  Avenarius.  The 
mechanism  of  the  will  is  clearly  revealed.  The 
method  by  which  the  will  may  be  trained  and  modi- 
fied is  brought  into  the  light  of  day  and  shown  to 
be  in  perfect  harmony  with  what  has  been  intuited 
by  the  best  minds  of  the  past.  The  old  phrase,  "  As 
a  man  thinketh  in  his  heart,  so  is  he,"  is  shown  to 
have  neural  and  muscular  basis.  The  ancient  concep- 
tion of  the  will  as  something  entirely  apart  from  neural 
paths,  motor  tendencies,  and  bodily  "  sets,"  is  over- 
thrown. Incidentally,  there  is  much  light  shed  upon 
the  problems  of  choice;  the  idea  of  unmotivated,  i.e., 
uncaused  choices,  is  discredited  —  not  by  dialectics, 
but  by  a  demonstration  of  the  method  of  all  conation. 
In  my  judgment,  it  not  only  points  out  how  wills  may 
be  modified,  checked,  or  suppressed,  but  it  "  scraps  " 
that  ancient  and  hoary  "  freedom  of  the  will "  which 
has  been  called  the  "  freedom  of  indifference  "  —  free 
to  do  anything  at  all  regardless  of  the  ancestry,  char- 
acter, or  present  situation  of  the  person  supposed  to 
be  in  possession  of  it.  Professor  Holt's  book  is  not  a 
manual  of  practical  ethics;  but  it  contributes  notably 
to  our  knowledge  of  how  to  make  such  a  manual. 

Much  is  known  today  of  those  influences  which 
disturb,  impair,  or  destroy  altogether  the  neural  mech- 
anism without  which  there  can  be  no  training.  This 
material  has  never  been  brought  together  in  any  form 
to  make  it  available  for  ethical  practice.  To  bring  it 
together  in  definite  fashion  would  be  a  valuable  ser- 


ETHICS    AS    SCIENCE    AND    AS    ART      31 

vice.  I  refer  to  what  is  known  of  the  influence  of 
alcohol,  for  example,  upon  the  system  —  what  is 
known,  not  guessed  or  projected  by  the  perfervid 
imaginations  of  prohibitionists;  of  the  effects  of  vari- 
ous poisons  and  drugs;  of  the  influence  of  various 
foods  upon  types  of  organisms;  of  the  destroying  ef- 
fects of  fatigue,  especially  upon  those  charged  with 
the  public  safety,  such  as  railroad  signalmen,  locomo- 
tive engineers,  chauffeurs,  officers  of  steamships,  and 
the  like.  We  may  add  also  the  effects  of  under- 
nutrition and  of  anxiety  as  well  as  of  over-nutrition 
and  idleness.^*'  Then  there  is  a  different  kind  of  in- 
fluence upon  which  there  is  not  at  present  much  accu- 
rately known,  which  may  be  indicated,  viz.,  the  in- 
fluence of  the  economic  struggle. 

If  I  have  seemed,  at  times,  to  cross  the  line  between 
science  and  art,  it  is  not  to  be  wondered  at;  for  there 
is  no  sharp  delimitation  to  be  made.  It  would  be 
perfectly  proper  to  consider  some  of  the  subjects  just 
mentioned  under  either. 

It  is  manifest  that  the  art  of  ethics  can  be  practiced 
only  when  one  is  sure  of  his  ethics.  The  relation 
between  ethics  as  science  and  as  art  has  been  admir- 
ably treated  by  Dewey  and  Tufts."  The  practical 
aids  which  I  have  mentioned  or  indicated  will  be 
equally  useful  for  all  ethical  systems,  for  they  simply 
help  to  carry  into  effect  the  various  principles;  and 

26  cf  'I  'pjjg  Biological  Point  of  View  in  Psychology  and  Psy- 
chiatry," E.  Stanley  Abbot,  Psychological  Review,  March,  1916. 

27  Ch.  XVI,  §  4,  "The  Place  of  General  Rules."  Of,  A.  F. 
Shand,  "The  Science  of  Character." 


32  THE    PUBLIC    CONSCIENCE 

every  one  of  them  has  been  foreshadowed  in  the  prov- 
erbial sayings  of  mankind,  although  every  proverb 
has,  as  it  were,  an  anti-proverb  which  needs  to  be 
considered. 

VI 

To  summarize: 

1.  Ethics  can  be  and  will  be  treated  as  a  natural 
science. 

2.  To  insist  upon  its  normative  character  is  to 
darken  counsel  and  keep  it  from  being  studied  in  any 
fruitful  way.  If  normative  in  the  absolutist  and 
aprioristic  sense,  it  is  impossible  to  study  it  as  a  science 
at  all. 

3.  The  case  method,  which  is  in  social  sciences  the 
analogue  of  the  laboratory  method,  must  be  used  for 
the  discovery  of  ethical  laws.  It  is  not  casuistical, 
since  it  does  not  assume  a  knowledge  of  these  laws 
ab  initio. 

4.  The  results  already  attained  by  many  sciences, 
notably,  biology,  anthropology,  and  sociology,  with 
their  subordinate  divisions,  notably,  psychiatry  and 
economics,  will  be  used  for  the  purpose  of  discovering 
what  man  can  do. 

5.  The  influence  of  what  may  be  called  social 
heredity,  through  racial,  national,  and  religious  tradi- 
tions, will  also  be  an  object  of  study  as  well  as  casuistry 
properly  so  called. 

Since  this  science  is  but  just  conceived,  we  must 
remain  for  a  long  time  on  the  basis  of  various  tradi- 
tional or  accepted  ethical  systems.    To  apply  them 


ETHICS    AS    SCIENCE    AND    AS    ART      33 

better  and  make  them  more  effective,  modern  knowl- 
edge contributes  much,  notably,  an  acquaintance  with 
the  mechanism  of  the  will  through  Freud,  Holt,  and 
Avenarius. 

Such  an  undertaking  as  has  just  been  outlined  will 
necessarily  meet  with  neglect  or  with  opposition,  criti- 
cism of  an  unfriendly  character  and  misunderstanding. 
It  is,  at  any  rate,  an  honest  attempt  to  find  light  in  a 
region  where  there  has  been  much  darkness.  It  can 
not  hurt  any  moral  imperatives  to  have  them  investi- 
gated. If  they  refuse  to  "  show  their  books  "  one  will 
indeed  suspect  them. 

At  a  time  such  as  this,  when  myriads  of  men  have 
lost  their  ethical  moorings  in  the  great  tidal  wave 
which  has  swept  over  the  world,  it  is  wise  to  examine 
ourselves  and  our  situation  in  life;  to  see  if  there  is 
anything  to  which  we  can  hold  fast  in  the  wreck  of 
worlds  and  cultures ;  to  ask  whether  we  have  any  ideals 
which  can  be  held  in  the  face  of  all  the  facts;  and 
finally,  to  ask  how  we  shall  act  so  as  to  make  those 
ideals  incorporate.  For  when  one  has  once  found  his 
ideals  he  is  a  propagandist;  and  he  must  fight  with 
every  weapon  he  can  seize  or  forge  to  make  his  ideals 
prevail. 


CHAPTER   II 
THE    EMPIRICAL    USE    OF    CASES 


I  HAVE  elsewhere^  told  of  the  manner  in  which  I 
came  to  experiment  with  the  study  and  teaching  of 
ethics  by  the  Case  Method.  Some  of  those  details 
are  irrelevant  here  but  others  need  to  be  set  forth. 

The  first  thing  that  needs  emphasis  is  that  one  does 
not  assume  that  he  knows  what  right  conduct  is. 
That  is  the  thing  to  be  sought.  The  teaching  of  law 
by  the  Case  Method  dates  back  about  forty  years. 
When  President  Eliot  was  introduced  to  explain  the 
formal  adoption  of  this  method  at  the  Harvard  Law 
School,  he  said :  ^  "  Professor  Langdell  told  me  that 
law  was  a  science ;  I  was  quite  prepared  to  believe  it. 
He  told  me  that  the  way  to  study  a  science  was  to  go 
to  the  original  sources.  I  knew  that  was  true,  for  I 
had  been  brought  up  in  the  science  of  chemistry  my- 
self; and  one  of  the  first  rules  of  a  conscientious  student 
of  science  is  never  to  take  a  fact  or  a  principle  out  of 
second-hand  treatises,  but  to  go  to  the  original  memoir 
of  the  discoverer  of  that  fact  or  principle.  Out  of 
these  two  fundamental  propositions  —  that  law  is  a 

1  Cf.  "  The  Case  Method,  in  the  Study  and  Teaching  of  Ethics," 
Journal  oj  Philosophy,  etc.  Vol.  X,  p.  342. 

2  American  Law  Review,  Vol.  XXII,  p.  18. 

34 


THE    EMPIRICAL    USE    OF    CASES         35 

science,  and  that  a  science  is  to  be  studied  in  its  sources 
—  there  gradually  grew,  first,  a  new  method  of  teach- 
ing law;  and,  secondly,  a  reconstruction  of  the 
curriculum  of  the  school." 

Professor  J.  C.  Gray,  writing  later  in  the  same 
Review  ^  said:  "  The  best  material  for  a  legal  educa- 
tion would  be  real  cases.  .  .  .  The  method  of  study 
by  cases  is  the  best  form  of  legal  education  that  has 
yet  been  discovered.  It  is  the  best  because  it  is  most 
in  accordance  with  the  constitution  of  the  human 
mind;  because  the  only  way  to  learn  to  do  a  thing 
is  to  do  it.  No  man  ever  yet  learned  to  dance  or  to 
swim  by  reading  treatises  upon  saltation  or  natation. 
No  man  ever  learned  chemistry  except  by  retort  and 
crucible.  No  man  ever  learned  mathematics  without 
paper  and  pencil." 

It  is  to  be  observed  that  Professor  Gray  is  here 
speaking  especially  of  the  value  of  the  case  method  in 
teaching  law.  Whether  the  case  method  is  used  in 
law  schools  for  the  purpose  of  discovering  what  law 
is  may  well  be  doubted.  It  has  been  doubted ;  and  a 
very  acute  critic  of  this  method,  whether  used  in  law 
or  in  ethics,  has  declared  that  such  studies  are  essen- 
tially casuistical.  It  is  assumed  that  one  knows  what 
the  law  is;  the  cases  are  used  simply  that  one  may  find 
the  exact  place  in  legal  teaching  where  each  case  be- 
longs. The  case  study,  he  claims,  is  not  an  unbiased, 
empirical,  inductive  attack  upon  the  problem,  What 
is  the  law? 

3  Ibid.,  pp.  756  ff. 


36  THE    PUBLIC    CONSCIENCE 

Doubtless  much  might  be  said  for  this  view.  In 
the  recent  decisions  of  Courts  under  the  Employers' 
Liability  and  Workmen's  Compensation  Acts,  it  is 
plain  that  the  procedure  is  largely  casuistical.  What- 
ever ingenuity  is  employed,  is  devoted  to  fitting  the 
case  in  hand  to  some  particular  aspect  or  interpreta- 
tion of  the  statute.  But  this  is  inseparable  from  the 
interpretation  of  statute  law.  The  statute  is  manda- 
tory. The  court's  business  is  simply  to  find  out 
whether  the  statute  applies;  *  and  in  doing  this  it  is 
quite  customary  to  revert,  for  comparison,  to  cases 
under  the  Common  Law  —  since  these  have  been  used, 
invariably,  in  the  early  interpretations  of  statutes. 

II 

But  I  am  not  here  concerned  to  defend  the  Case 
Method  in  the  study  of  law.  I  am  sufficiently  in- 
debted to  it  for  the  idea  of  studying  ethics  in  this 
manner,  and,  whatever  the  law  purpose,  viy  purpose 
is  clear,  viz.,  to  investigate  through  a  study  of  actual 
behavior,  what  are  the  moral  principles  upon  which 
men  conduct  their  lives.  It  is  a  study  of  what  is 
rather  than  a  study  of  what  ought  to  be. 

Such   a  declaration   as   this  promptly  damns  my 

•*  Except  where  the  question  of  constitutionality  arises.  Cf.  for 
this  a  paper  by  Morris  R.  Cohen  on  "  Legal  Theories  and  Social 
Science,"  read  before  the  New  York  State  Bar  Association  in  January, 
1915,  wherein  Professor  Cohen  shows  the  considerable  part  that 
judges  have  in  the  interpretation  and  application  of  statutes  and 
also  in  the  making  of  constitutional  law.  It  is  generally  acknowl- 
edged that  Chief  Justice  Marshall  played  a  great  part  in  the  estab- 
lishment of  constitutional  law  through  his  judicial  opinions. 


THE    EMPIRICAL    USE    OF    CASES         37 

project  in  the  eyes  of  most  ethical  students,  since  these 
insist  that  ethics  is  concerned  with  the  ought  exclu- 
sively. But  the  actual  condition  of  things  must  be 
studied  first;  and  since  legal  decisions  have  an  objec- 
tive character,  I  have  chosen  them  as  the  most  promis- 
ing material  to  work  with. 

My  thought  has  been  sufficiently  naive.  If  we  can 
learn  more  about  animal  life  by  studying  actual  ani- 
mals than  by  reflecting  in  our  closets  on  the  essential 
nature  of  animals,  is  it  not  likely  that,  if  we  should 
study  actual  decisions  of  mankind  in  situations  ordi- 
narily called  moral,  we  should  discover  something 
really  worth  while  about  morals? 

We  are  accustomed  to  contrast  the  legal  and  the 
moral;  and  doubtless  some  things  which  are  strictly 
legal  most  of  us  would  consider  immoral  and  some 
things  of  an  exalted  morality,  by  common  consent, 
are  certainly  not  required  by  the  law.  But  the  body 
of  law  is  the  pro  jessed  morality  oj  states;  and  that 
which  holds  throughout  generations  and  ages,  essen- 
tially unchanged,  may,  without  impropriety  or  exag- 
geration he  called  the  actual  morality  oj  states.^ 

Then  too  the  law  cases  have  the  important  quality 

5  An  interesting  and  valuable  essay  might  be  written  upon  the 
morality  of  international  law,  comparing  this  latter,  in  the  case  of 
each  nation,  to  the  idealistic  aspirations  of  individuals.  For,  as 
there  is  in  strictness  no  international  law  as  yet,  there  being  no 
power  which  can  enforce  it,  so,  in  strictness,  there  is  no  ethical 
behavior  which  corresponds  to  the  vague  aspirations  of  most  men. 
This  is  found  only  in  moral  heroes,  and  the  motive  for  putting  svich 
ideals  into  practice  is  nearly  always,  or  quite  always,  a  motive 
which  has  to  do  with  faith  rather  than  knowledge. 


38  THE    PUBLIC    CONSCIENCE 

that  they  are  complete  and  completely  objective. 
The  cases  used  for  this  study  are,  almost  all,  decisions 
of  higher  courts.  I  have  endeavored  to  give  a  suf- 
ficiently full  statement  of  the  facts  upon  which  deci- 
sion is  based;  and  always  to  give  the  decision,  even 
if  it  be  only  the  "  Judgment  Affirmed,"  "  Judgment 
Reversed,"  "  Case  remanded  for  new  trial,"  indicating 
which  side  has  obtained  the  verdict. 

There  is  no  record  published  of  those  cases  which 
do  not  go  beyond  the  Trial  Courts,  cases  which  are 
not  appealed.  And  even  the  Federal  Reporter,  which 
takes  account  of  cases  in  the  Circuit  Courts  of  the 
United  States,  usually  states  only  the  law  points  in- 
volved and  indicates  the  decision;  it  does  not  give 
any  statement  of  the  case.  Sometimes,  very  often  in 
fact,  this  is  unobtainable  without  an  expenditure  of 
time  and  labor  quite  ruinous.  But  in  all  cases  which 
come  before  courts  of  final  appeal,  whether  the  highest 
courts  of  individual  states  or  of  the  United  States, 
there  is  a  summary  of  the  facts  of  the  case,  agreed 
upon  by  both  sides.  Wherever  a  jury  passes  upon 
facts,  the  facts  remain,  for  purposes  of  the  judgment, 
whatever  the  jury  has  found  them  to  be.  That  the 
facts  may  often  be,  in  important  particulars,  quite 
other  than  the  jury  found,  does  not  invalidate  the 
judgments  passed  upon  them  by  courts. 

Lawyers  are  accustomed  to  distinguish  sharply  be- 
tween obiter  dicta,  things  said  by  the  Court  as  an 
explanation  of  its  mental  processes  in  coming  to  a 
judgment,  and  the  judgment  itself.     Of  course,  the 


THE    EMPIRICAL    USE    OF    CASES         39 

more  important  thing  is  the  judgment.  The  boy 
whose  father  tells  him  that  he  is  greatly  pained  to  be 
compelled  to  punish,  is  more  interested  in  the  fact  that 
the  punishment  comes  just  the  same.  If  courts  keep 
on  condemning  murderers  and  thieves,  it  'would  be 
little  to  the  point  if  their  dicta  favored  these  classes 
of  criminals. 

One  of  the  criticisms  passed  upon  my  first  proposal 
to  study  ethics  through  cases,  was  that  this  would  be 
a  study  of  opinion.  It  is  rather  a  study  of  opinions; 
but  opinions  backed  by  the  full  "  majesty  of  the  law  " 
and  all  the  power  of  the  state.  When  the  Supreme 
Court  of  the  United  States  dissolves  the  Standard  Oil 
Trust,  so  called,  the  opinion  of  the  world  may  be  mani- 
fold in  nature;  but  this  dissolution  did  in  fact  affect 
the  conduct  of  the  Standard  Oil  Company  enormously; 
and  it  does  not  matter  in  the  least  for  our  purpose 
whether  this  increased  or  diminished  its  profits.  That 
is  a  matter,  possibly,  for  sociological  reform.  The  de- 
cision of  the  Court  was  an  enormously  important  act. 
We  lose  sight  of  this  fact  because  no  force  was  neces- 
sary to  bring  about  the  dissolution. 

As  in  the  famous  case  of  the  Pullman  Car  Strike, 
the  strikers  themselves  declared  that  it  was  not  the 
military  force  which  broke  up  the  strike,  nor  any  other 
force;  it  was  simply  the  power  of  the  United  States 
Courts;  so  every  court  decision  is  an  act  of  over- 
whelming importance.  It  is  a  thing  to  be  observed 
like  a  chair  or  a  table,  with  as  much  objective  signifi- 
cance for  us  as  chairs  and  tables.    Doubtless  the  ques- 


40  THE    PUBLIC    CONSCIENCE 

tion  of  the  purely  objective  character  of  chairs  and 
tables  is  not  one  which  is  easily  decided.  But,  as  one 
does  not  take  a  long  course  in  philosophy  before  he 
studies  chairs,  tables,  amoebae,  cacti,  or  coleoptera, 
so  one  need  not  solve  the  question  of  subjectivity 
before  he  makes  use  of  social  facts.^ 

Ill 

The  question,  where  to  begin,  belongs  properly  in 
the  next  chapter  where  there  will  be  a  brief  discussion 
of  method ;  but  it  belongs  here  too.  It  will  be  obvious 
that  many  of  my  cases  are  taken  from  contemporary 
life.  In  this  first  attempt  at  a  Case  Book,  I  might 
perhaps  be  forgiven  for  taking  the  easiest  way  even 
if  it  were  not  the  best  way;  but  I  am  convinced  that 
to  begin  with  the  study  of  contemporary  cases,  easily 
verified,  is  scientifically  sound.  I  would  indeed  have 
confined  myself  entirely  to  cases  in  our  own  country 
and,  within  those  bounds,  in  the  State  of  New  York, 
had  I  been  able  to  find  the  variety  of  cases  desired, 
which  were  adjudicated  and  reported.  But  many  of 
the  principles  of  the  common  law  which  have  now  be- 
come incorporated  in  our  statutes  and  constitutions, 
are  exemplified  only  in  English  and  early  American 
cases.  This  rapid  disappearance  of  the  common  law 
through  the  incorporation  of  its  principles  in  statutes 
is  a  matter  of  very  great  interest.'' 

8  Compare  for  this  the  work  of  E.  Durkheim,  especially  "  Les 
Regies  de  la  Mt'thode  Sociologique,"  Chap.  II,  "Regies  relatives 
a  robservation  des  faits  sociaux,"  p.  20  f. 

7  "  There  is  little  legislation  that  is  original.    Legislatures  imi- 


THE    EMPIRICAL    USE    OF    CASES         41 

Another  reason  for  choosing  present-day  cases,  and 
for  not  making  a  comparative  study  of  decisions  in 
the  different  states,  is  that  the  decisions  of  New  York 
and  Massachusetts,  for  example,  may  be  taken  as  rep- 
resentative of  the  best  decisions  of  the  whole  country, 
furnishing  a  standard  which  is  more  and  more  approxi- 
mated from  year  to  year.^  An  examination  of  the 
points  of  cases  under  the  well-known  captions,  in 
Digests  which  cover  the  entire  country,  shows  that  a 
comparative  study  of  the  statutes  of  the  different 
states  of  the  Union  would  be  a  waste  of  time;  but  it 
may  not  be  amiss  to  dwell  for  a  moment  on  the  differ- 
ence between  statute  and  common  law  on  the  one 
hand,  and  the  real  practise  of  the  people  on  the  other. 

Professor  Ehrlich,^  speaking  of  the  variance  between 


tate  one  another.  One  may  number  on  his  fingers  the  landmarks 
of  legislation  in  common  law  jurisdictions,  and  copies  or  adaptations 
of  them  have  gone  round  the  world."  —  Roscoe  Pound  in  Columbia 
Law  Review,  5:343. 

8  A  layman  in  the  law  thinks  that  he  observes  a  deterioration 
in  the  quality  of  judicial  decisions  since  these  have  been  confined 
largely  to  the  interpretation  of  statutes  —  because  statutes  are  now- 
adays so  explicit.  And  what  will  be  the  effect  upon  legal  education? 
The  Case  Method  in  law  would  seem  to  be  doomed,  and  a  study  of 
statutory  enactments  with  an  investigation  into  their  enforcement 
would  take  its  place. 

3  Professor  E.  Ehrlich  is  the  distinguished  investigator  of  what 
he  has  called  the  "  living  law "  who,  before  the  Great  War,  was 
teaching  and  investigating  at  Czernowitz  in  Austria-Hungary.  One 
of  the  minor  losses,  from  the  ordinary  point  of  view,  a  major  loss 
from  the  point  of  view  of  science,  caused  by  the  Great  War,  is  the 
interruption  or  destruction  of  his  studies  among  the  numerous 
races  of  that  interesting  district.  For  the  quotation  I  use,  cf. 
Schmoller's  "  Jahrbuch,"  1911,  p.  136. 


42  THE    PUBLIC    CONSCIENCE 

the  law  of  families  in  France,  particularly  as  concerns 
women,  and  the  facts,  says:  "Whether  the  law  has 
lost  control  over  life  or  perhaps  never  had  it,  whether 
life  developed  away  from  the  law  or  never  corresponded 
to  the  law,  may  be  set  aside;  but  science  fulfills  its 
task  as  teacher  of  law  {Recht)  very  badly  if  it  barely 
presents  what  the  statute  (Gesetz)  says  and  not  also 
what  actually  occurs."  He  seems  here  to  be  making 
a  distinction  between  law  as  commandment  of  a  law- 
giver, whether  individual  or  legislative  body,  and  law 
as  a  description  of  what  invariably  happens.  The 
thing  which  we  are  looking  for  is  law  in  the  latter 
sense ;  and  some  who  agree  with  our  desire  to  find  this 
natural  law  will  be  surprised  to  find  our  constant  cita- 
tion of  cases  decided  under  Common  Law  and  statute 
law. 

Let  there  be  no  mistake  about  our  position.  The 
declaration  of  the  conscience  oj  the  state  in  its  con-' 
stitutions  and  statutes  is  indeed  explicit;  hut  the 
exposition  oj  its  real  purposes  is  found  in  the  way  in 
which  these  statutes  and  constitutions  are  interpreted 
and  enforced.  The  most  common  and  obvious  cases 
of  neglect  or  betrayal  of  statutes  are  in  the  neglect 
of  numerous  sumptuary  laws,  "  Connecticut  blue  laws," 
the  constitutional  guarantee  of  manhood  suffrage  in 
states  south  of  Mason  and  Dixon's  line,  and  the  like. 
A  recent  glaring  case  was  ignoring  the  laws  against 
betting  on  elections,  which  disfranchise  all  who  should 
make  wagers  on  the  result.  In  the  Presidential  elec- 
tion of  1916  many  millions  of  dollars  were  openly 


THE    EMPIRICAL    USE    OF    CASES         43 

wagered  on  the  result  of  the  election  and  the  names 
of  prominent  bettors  were  printed  in  the  newspapers. 
An  editorial  calling  attention  to  this  was  printed  in 
the  New  York  Times;  but  no  one  was  prevented  from 
voting  and  no  one  dreamed  of  arrests.  Many  statutes 
die  of  inanition  every  year.  But  the  cases  which 
come  before  courts  of  final  appeal  are  not  based  upon 
such  statutes.  There  is  a  hard  core  of  public  senti- 
ment which  is  indicated  in  the  recurrence  of  certain 
types  of  cases,  which  I  have  given  in  the  classifications 
which  follow. 

But  here  we  find  another  difficulty,  another  lack 
of  frankness,  more  evasion.  Nothing  could  be  nobler 
than  the  sentiments  expressed  in  many  a  judicial 
opinion ;  but  those  who  have  known  the  inside  history 
of  the  cases  have  known  also  what  a  miserable  travesty 
of  justice  was  there.  The  law  can  be  the  biggest 
Pharisee  on  record.  In  adherence  to  the  letter  it  can 
murder  justice.  This  is  a  commonplace.  It  would 
not  be  worth  uttering  except  that  it  must  be  taken 
into  account  in  weighing  some  of  the  dicta  cited.  Some 
day  there  should  be  a  statistical  account  of  decisions 
of  certain  types  —  say  in  murder  cases  —  with  a  curve 
plotted.  When  that  day  comes,  the  statistics  should 
be  based  wholly  on  the  decisions,  with  no  attention 
paid  to  the  dicta,  which  are  always  full  of  noble  and 
sometimes  Pecksniffian  sentiments. 

Again  we  must  observe  that  many  of  the  decisions 
of  the  courts  would  be  noble  not  only  in  sentiment 
but  in  fact,  if  the  facts  upon  which  they  were  based 


44  THE    PUBLIC    CONSCIENCE 

only  happened  to  exist.  Given  the  facts  before  an 
Appellate  Court,  the  principles  upon  which  the  deci- 
sions are  based  are  often  beyond  reproach.  The 
trouble  has  been  that  a  jury  has  decided  upon  the 
facts  and,  under  the  obsession  of  the  Anglo-Saxon  mind 
that  there  are  no  oracles  equal  to  jury  oracles,  we  think 
that  a  dozen  men  picked  from  among  the  less  energetic 
and  capable  —  for  the  more  energetic  and  capable 
usually  know  how  to  escape  jury  duty  —  by  the  spir- 
itual unction  bestowed  upon  them  through  being 
drawn  in  a  panel,  are  capable  of  deciding  questions 
of  fact  in  realms  where  the  most  expert  intelligence 
is  often  baffled. 

But  this  is  a  difficulty  which  I  do  not  feel  called 
upon  to  meet,  here  at  least.  It  belongs  to  the  re- 
formers of  legal  procedure.  A  study  of  the  public 
conscience  has  no  concern  with  it  until  it  becomes  a 
"  case,"  that  is  to  say,  until  some  tribunal  of,  say, 
the  Bar  Association,  has  passed  upon  it. 

IV 

Nor  can  we  at  present  reproach  judges  that  they  do 
not  give  decisions  upon  the  basis  of  what  they  believe 
to  be  the  evidence  rather  than  upon  the  basis  of  what 
a  possibly  ignorant  jury  may  have  reported.  Judges 
cannot  go  back  of  this  evidence  if  they  would.  There 
is  no  personal  reflection  upon  them  for  this  any  more 
than  for  the  dodo-like  decisions  which  we  find  em- 
balmed in  past  cases  and  even  peacefully  slumbering 
in  present-day  cases.     If  an  awakening  of  the  public 


THE    EMPIRICAL    USE    OF    CASES         45 

conscience  takes  place,  that  will  be  a  fact ;  if  it  does  not, 
the  present  facts  are  all  we  have  to  go  upon.  This 
seems  to  be  a  good  place  to  try  to  make  clear  that 
there  is  no  underlying  purpose  of  edification  hi  this 
volume.  Nor  is  there  any  room  for  praise  or  blame 
of  conduct.  When  I  show  a  certain  impatience  with 
the  archaic  procedure  of  our  courts  I  am  doing  nothing 
more  than  expressing  the  sentiments  of  the  most  con- 
servative as  well  as  the  most  radical  of  men.  Every- 
one knows  that  procedure  is  in  need  of  reform.  But 
I  am  not  here  trying  to  reform  it  or  anything  else. 
I  am  simply  trying  to  set  forth  in  as  coolly  dispas- 
sionate a  fashion  as  possible  what  the  decisions  of  our 
tribunals  are.  There  are  many  tribunals,  as  I  have 
indicated  above.^°  These  tribunals  of  families,  clubs 
and  partnerships,  which  are  more  elusive,  I  have  set 
aside  for  a  future  day  or  for  another  worker  in  this 
field.  For  myself,  and  as  an  indication  of  what  this 
study  should  be,  I  have  chosen  the  decisions  of  the 
law  courts  and  /  have  no  slightest  interest  in  whether 
they  are  right  or  wrong,  good  or  bad,  so  far  as 
this  study  is  concerned,  any  more  than  a  physician 
would  get  in  a  temper  over  a  fever  or  a  chill  and  praise 
a  patient  for  returning  to  the  normal. 

In  class-room  work  I  have  not  allowed  the  use  of 
the  word  ought  at  all  as  indicating  a  course  of  conduct 
which  student  or  instructor  deemed  right.  We  are 
here  seeking  to  find  out  what  oughts  there  are,  i.e., 
what  duties  society  has  declared  to  be  owed  to  it. 

1°  Cite  passage  in  Ch.  I. 


46  THE    PUBLIC    CONSCIENCE 

These  duties  may  be  quite  irrational,  based  upon  an- 
cient taboos.     N'importe!     What  are  they? 

Edification  may  come  later  on,  when  enough  shall 
have  been  discovered  about  the  science  of  ethics  to 
enable  us  to  begin  to  build  up  an  art/^  We  know- 
nothing  yet.  Besides,  edification  always  assumes  that 
what  ought  to  be  is  known,  the  only  difficulty  being 
how  to  bring  it  about.  It  has  often  been  asked  whether 
men  are  interested  in  the  purely  theoretic  study  of 
anything  —  whether  there  is  not  always  some  practical 
purpose  either  in  the  background  or  else  openly 
avowed.  It  does  not  greatly  matter  what  answer  we 
give  to  this  question.  It  depends  largely  upon  temp- 
erament and  training;  but  one  thing  seems  evident 
to  me,  in  this  connection,  which  is  of  the  greatest  im- 
portance. There  are  great  underlying  powers  of  man- 
kind which,  if  we  could  reach  them  and  utilize  them, 
would  revolutionize  society.  Their  using  belongs  in 
the  art  of  ethics ;  their  discovery  belongs  to  the  science. 
Pope's  hackneyed  line  recurs  because  it  is  so  much 
truer  than  that  dapper  thinker  thought:  "  The  proper 
study  of  mankind  is  man."  Men  have  scratched  the 
surface  of  society  with  their  theologies  and  their  phi- 
losophies —  man  has  marched  along  sublimely  regard- 
less of  them  all.  We  still  study  history  obsessed  by 
these  theological  and  philosophical  prepossessions  and 
are  as  blind  to  the  facts  as  an  Aristotelian  naturalist 
before  the  days  of  Cuvier  or  Buffon. 

We  tried  a  few  years  ago  to  estimate  the  economic 

11  Cf.  "  The  Case  Method,  etc.,"  op.  cit. 


THE    EMPIRICAL    USE    OF    CASES         47 

resources  of  our  country,  to  use  them  in  case  of  war. 
This  is  of  an  importance  which  I  would  not  minimize ; 
yet  it  is  a  truism  to  say  that,  could  we  learn  how  to 
utilize  the  great  underlying  ethical  powers  of  man, 
they  would  have  a  value  compared  with  which  all  the 
economic  forces  were  as  nothing.  And  the  philoso- 
pher's stone  is  as  useless  here  as  it  was  in  the  physical 
sciences.  A  patient  study  —  arduous,  long  continued, 
disappointing,  but  finally  rewarding  —  is  all  that  will 
ever  give  us  access  to  those  untouched  "  energies  of 
men  "  of  which  the  great  William  James  dreamed. 

Now  our  enterprise  may  be  an  entirely  futile  one 
but  let  it  at  any  rate  be  known  for  what  it  is.  Levy- 
Bruhl  has  said  that  the  science  des  moeurs  will  not 
itself  be  moral.  That  seems  an  excellent  statement 
of  the  case.  As  we  can  investigate  logical  relations 
and  build  up  a  science  of  mathematics;  as  we  can  in- 
vestigate neurones  and  dendrites  and  receptors,  etc., 
and  build  up  a  science  of  neurology;  as  we  can  study 
the  forms  of  all  living  things  and  build  up  a  science 
of  biology ;  so  we  believe  that  a  study  of  duties,  obliga- 
tions, rights,  powers,  penalties  and  rewards,  will  lead 
us  to  a  science  of  duty,  obligation,  right,  et  cetera. 


There  have  been  those  who  found  in  my  programme 
for  the  study  of  ethics  an  attack  upon  duty  simply 
because  I  excluded  duty  from  employment  as  a  term 
explanatory  of  that  which  we  were  seeking  to  define. 
This  seems  to  me  preposterous,  but  it  is  none  the  less 


48  THE    PUBLIC    CONSCIENCE 

true.  So  I  wish  simply  to  state  categorically  that  we 
are  studying  Duty  and  nothing  else.  We  could  hardly 
study  that  which  we  do  not  believe  to  exist.  But  we 
study  Duty  by  way  of  "  duties,"  and  life  is  full  of 
duties  which  we  are  not  allowed  to  forget.  To  be 
sure,  men  like  better,  today  to  talk  of  their  rights 
than  of  their  duties;  but  it  is  another  commonplace 
that  for  every  right  there  is  a  duty.  I  have  not  relied 
upon  Professor  D.  G,  Ritchie's  admirable  book 
"Natural  Rights"  to  justify  my  position;  the  cases 
cited  will  do  that  —  but  I  might  appeal  to  it  with 
perfect  confidence  and  I  very  gladly  acknowledge  the 
immense  influence  it  has  had  on  my  thinking.^^  The 
cases  chosen  for  use  in  this  book  all  illustrate  some 
definite  obligation  imposed  upon  men  in  society. 
Those  obligations  are  the  most  definite  ever  imposed 
anywhere,  since  they  even  include  the  duties  of  soldiers 
in  regular  armies.  The  penalty  for  the  infraction  of 
some  of  these  duties  is  death.  Nothing  could  be  less 
equivocal  than  these  duties.  Moreover,  where  dif- 
ferent societies  and  different  periods  are  indicated  there 
is  an  opportunity  to  see  whether,  under  similar  condi- 
tions, similar  duties  are  imposed.  There  can  be  no 
doubt  that  such  is  the  case.  The  principle  would  be- 
come still  more  apparent  had  there  been  much  effort 
made  in  this  book  to  give  a  genetic  sketch  of  ofifenses. 
That  work  must  be  reserved  for  another  time,  perhaps 

12  This  has  been  rather  in  the  way  of  corroboration  than  of 
incitation  since  I  had  come  to  the  same  general  conclusions  before 
reading  Ritchie's  book.  For  any  one  who  will  read  it  there  can  be 
no  further  belief  in  rhetorical  Natural  Rights. 


THE    EMPIRICAL    USE    OF    CASES  49 

for  another  investigator  better  equipped  for  that 
particular  work. 

This  case  book  is  a  sort  of  cross-section  of  contempo- 
rary society's  judgment  about  the  obligations  of  its 
jnembers  to  the  group. 

It  is  far  from  being  a  complete  cross-section.  There 
are  sub-classifications  given  without  any  cases.  Some- 
times this  is  because  the  point  made  in  classifying  was 
obvious  and  uncontradicted,  supported  by  a  multitude 
of  commonplace  cases  not  worth  quoting;  but  some- 
times it  was  because  I  could  not  find  in  legal  decisions 
any  case  bearing  upon  that  point.  This  is  in  no  way 
strange  or  unexpected.  Case  books  on  the  law  are 
usually  very  full  in  some  parts,  very  scant  in  others, 
while  the  hiatus  is  not  unknown.  Man  has  not  devel- 
oped symmetrically  in  things  moral  and  legal  any  more 
than  he  has  in  things  physical.  We  look  in  vain  for 
the  Venus  of  Melos  and  the  Hermes  of  Herculaneum 
when  we  go  to  the  sea  shore ;  and  we  look  in  vain  for  a 
well  rounded  system  of  social  judgments  when  we  ex- 
amine the  law.  We  must  build  up  our  ideal  system 
from  a  study  of  actual  parts  where  we  can  find  them. 
We  have  that  ideal  in  physical  things  and  we  have 
got  it  from  the  actual  in  every  case.  If  the  sculptors 
of  genius  took  here  a  throat,  there  a  brow,  here  a  torso, 
there  a  leg  or  arm,  and  put  them  all  together  in  such 
a  fashion  that  the  world  wonders  and  loves  and  desires 
no  more  —  but  sighs  because  there  are  none  in  the 
flesh  to  compare ;  so  we  may  take  the  procedure  of  one 
state  at  one  time  for  the  offense  —  if  it  be  an  offense 


50  THE    PUBLIC    CONSCIENCE 

—  of  homicide  and  the  procedure  of  another  for  the 
offense  —  if  it  be  an  offense  —  of  adultery,  and  we 
may  then  build  up  an  ideal  state  which  will  not  have 
that  character  of  utter  unreality  and  extreme  undesir- 
ability  that  we  find  in  all  Utopias  from  Plato's  to 
Bellamy's  and  Wells's. 

What  the  state  —  any  state  —  requires  of  its  citi- 
zens, it  is  the  duty  of  those  citizens  to  bring  to  pass  if 
they  would  continue  to  live  and  prosper  in  that  state. 
One  may  not  find  out  what  his  duty  to  God  is  by 
studying  the  Penal  Law  of  New  York  State;  but  he 
will  be  much  less  apt  to  offend  his  neighbor  if  he  lives 
in  New  York. 

A  personal  friend,  not  a  philosopher  or  special  stu- 
dent of  this  subject,  but  a  lawyer  of  acute  mind,  has 
said  that  the  Case  Method  of  studying  ethics  might 
make  clear  to  a  man  what  he  ought  not  to  do,  but  it 
would  hardly  tell  him  what  he  ought  to  do;  and  it  is 
unquestionably  true  that  the  state  proceeds  entirely  by 
prohibitions,  leaving  a  man's  positive  duty  to  his  own 
impulses  and  innate  dispositions.  This  fact  may  fur- 
nish us  with  a  valuable  clue  to  the  nature  of  positive 
duty;  but  I  have  no  wish  to  suggest  any  type  of  theory 
at  this  point.  It  does  seem  to  me,  however,  that  we 
can  answer  that  criticism  without  much  trouble,  es- 
pecially at  this  stage  of  our  inquiry,  where  we  are 
merely  seeking  to  show  the  morality  by  which  men 
do  actually  live  with  reference  to  one  another  as 
citizens. 

If  there  is  indicated  a  sufficient  number  of  points, 


THE    EMPIRICAL    USE    OF    CASES         51 

we  can  plot  a  curve ;  and  we  don't  need  a  great  many 
points.  It  will  depend,  somewhat,  on  the  nature  of 
the  curve.  If  a  subject  is  bounded  in  any  way  what- 
soever, its  positive  character,  as  well  as  its  negative 
limits,  appears,  for  if  it  is  bounded  only  at  certain 
points,  it  is  obvious  that  the  rest  of  its  activity  is 
unhindered;  and  that  activity  will  depend  entirely 
upon  the  nature  of  the  thing  which  acts.  The  federa- 
tion of  states  which  went  to  the  formation  of  the 
United  States  will  furnish  us  with  an  example.  The 
Constitution  set  aside  certain  things  as  the  province 
of  the  Federal  Government.  In  these  respects  all  the 
component  states  must  yield  to  the  United  States;  in 
every  other  respect  they  were  free  to  do  as  they  pleased. 
Later  in  this  book  I  state  what  seem  to  me  the  con- 
clusions, positive  as  well  as  negative,  which  can  be 
drawn  from  the  study  of  the  cases  here  given  and  in- 
dicated. But  let  me  say  that,  however  ambitious  the 
programme  of  Chapter  I  of  this  volume,  the  purpose 
of  the  volume  as  a  whole  is  distinctly  more  modest. 
This  purpose  is,  to  furnish  examples  of  the  cases  which 
I  have  used  for  several  years  in  the  hope  that,  many 
persons  being  made  acquainted  with  the  method,  and 
many  observers  set  to  work,  there  might  grow  up 
gradually  a  body  of  cases  more  truly  representative 
and  free  from  the  bias  inevitable  to  a  single  in- 
vestigator. 

I  have  not  been  conscious  of  any  parti  pris  in  this 
study;  but  it  is  quite  possible  that  I  may  have  been 
unconsciously  guilty.     I  have  not  excluded  any  case 


52  THE    PUBLIC    CONSCIENCE 

from  consideration,  so  far  as  I  know;  and  the  classifi- 
cations, while  entirely  my  own  in  their  present  form, 
have  been  criticized,  at  my  request,  by  many  people  — 
students,  former  colleagues  and  professional  friends. 
In  many  instances  I  have  adopted  the  criticisms  which, 
while  valuable  and  already  recognized  by  me  person- 
ally, do  not  call  for  further  comment,  since  they  have 
not  changed  the  original  nature  of  the  book  in  any 
way. 

In  the  following  chapter,  in  an  account  of  method, 
I  explain  how  the  classification  came  to  be  made  and 
how  the  cases  were  originally  found. 


CHAPTER   III 
METHODS 

Mill  has  said/  "  Popular  notions  are  usually 
founded  on  induction  by  simple  enumeration.  In 
science  it  carries  us  but  a  little  way.  We  are  forced  to 
begin  with  it;  we  must  often  rely  on  it  provisionally, 
in  the  absence  of  means  of  more  searching  investiga- 
tion. But,  for  the  accurate  study  of  nature,  we  re- 
quire a  surer  and  more  potent  instrument.  It  was, 
above  all,  by  pointing  out  the  insufiEiciency  of  this  rude 
and  loose  conception  of  Induction,  that  Bacon  merited 
the  title  so  generally  awarded  to  him,  of  Founder  of 
the  Inductive  Philosophy  .  .  .  physical  investigation 
has  now  far  outgrown  the  Baconian  conception  of  In- 
duction. Moral  and  political  inquiry,  indeed,  are  as 
yet  far  behind  that  conception." 

Political  inquiry  has  made  considerable  strides  since 
Mill  wrote  these  words;  but,  aside  from  the  work  of 
Levy-Bruhl  and  the  investigators  mentioned  above, 
moral  inquiry  remains  about  where  it  was.  Induction 
by  simple  enumeration  is  then  the  first  step;  but 
even  for  this  there  must  needs  be  a  principle  of  in- 
quiry, a  heuristic  to  keep  us  from  mere  maunderings. 
These  studies  were  originally  undertaken  in  connection 
with  a  class  in  Dartmouth  College,  in  the  year  1911, 

1  "System  of  Logic,"  Vol.  I,  p.  361,  8th  ed. 
53 


54.  THE    PUBLIC    CONSCIENCE 

on  a  frankly  empirical  basis.  After  deciding  that  those 
cases  should  be  called  moral  which  were  approved  or 
disapproved  by  some  group,  with  the  iinplication  oj 
ability  to  have  acted  otherwise,  we  sought  in  no  way 
to  judge  the  morality  of  their  judgments.  For  ex- 
ample, the  Irish  of  the  Sinn  Fein  in  many  revolts  of 
recent  years  may  or  may  not  have  been  justified  in 
their  apparent  conviction  that  they  owed  no  allegiance 
to  Great  Britain;  that,  though  defeated,  they  could 
not  be  traitors;  but,  whatever  our  sympathies,  this  is 
plainly  a  case  of  moral  conduct. 

The  class  at  Dartmouth  was  invited  to  bring  in 
every  sort  of  moral  case  imaginable;  and  during  four 
years  through  which  the  study  was  pursued  in  con- 
nection with  classes,  a  large  variety  of  cases  was  pro- 
duced, some  important,  some  trivial,  most  of  them 
taken  from  newspapers.  Rude  and  tentative  classifica- 
tions were  made,  out  of  which  grew  the  classifications 
which  follow.  It  is  important  to  note  that  the  classi- 
fications were  not  even  attempted  until  large  numbers 
of  cases  had  been  studied  to  see  what  lines  of  cleavage 
were  plainly  apparent.  Mill  has  somewhere  said  "  The 
ellipse  was  in  the  facts  before  Kepler  recognized  it; 
just  as  an  island  is  an  island  before  it  has  been  sailed 
around."  The  principle  of  division  into  cases  relating 
to  the  Preservation  of  Life  and  Limb,  the  Preservation 
of  Property,  the  Preservation  of  Security  in  the  first 
two  and  the  Preservation  of  Liberty,  had  no  conscious 
basis  in  any  Eighteenth  Century  theories.  But,  while 
undoubtedly  influenced  by  these  theories  in  subtle 


METHODS  55 

ways,  we  believed  that  the  classifications  had  their 
basis  in  the  same  sets  of  facts  which  we  found.  The 
third  classification  is  distinctly  new  in  any  event  and 
presents  a  view  of  conduct  which  I  have  found  no- 
where else.  Mill  says  ^  "  a  preliminary  work  of  prepa- 
ration is  performed  on  the  observed  facts,  to  fit  them 
for  being  rapidly  and  accurately  collated  (sometimes 
even  for  being  collated  at  all)  with  the  conclusions  of 
theory."  Before  there  can  be  any  of  that  genuine 
science  des  moeurs  there  must  be  a  guess,  a  scientific 
guess,  at  the  meaning  of  the  multifarious  facts.  My 
guess  was  as  follows: 

Life  is  the  thing  to  be  defended  at  all  costs,  since 
the  first  business  of  any  organism  is,  to  survive;  hence, 
the  most  seriously  reprobated  offenses  will  be  those 
which  threaten  life. 

Property  —  by  which  is  meant  private  property,  for 
reasons  which  I  think  are  sufficiently  obvious  —  is 
valued  fundamentally  because  it  ministers  to  life.^ 
Hence,  we  may  expect  to  find  that  offenses  against 
property  will  be  punished  and  reprobated  in  direct  pro- 
portion as  these  (in  the  judgment  of  the  owners  of 
the  property)  threaten  life. 

Security  in  the  possession  of  life  and  property  is  a 
good  realized  the  more  as  society  becomes  more  com- 
plex and  developed.  Offenses  against  security  are 
essentially  offenses  against  life,  in  the  final  analysis; 

2  Op.  ciL,  Vol.  II,  p.  502,  10th  ed. 

^  The  esthetic  valuation  of  property  has  something  to  be  said 
for  it,  but  it  is  hardly  fundamental. 


56  THE    PUBLIC    CONSCIENCE 

but  it  takes  a  considerable  degree  of  intellectual  de- 
velopment to  recognize  this. 

Liberty  is  a  good  even  more  characteristic  of  a  de- 
veloped society;  and  the  highest  form  of  liberty,  the 
liberty  of  self-expression,  will  be  valued  only  by  the 
most  sophisticated  of  peoples. 

Cases  under  the  three  categories,  property,  security, 
liberty,  culminating  in  liberty  of  opinion  and  speech, 
must  all  be  taken  to  be  but  shadings  away  from  cases 
of  life.  In  the  end  all  ethics  is  a  question  of  survival 
of  personality,  linked  to  the  survival  of  the  body. 
"All  that  a  man  hath  will  he  give  for  his  life,"  but 
that  life  may  mean  the  death  of  the  body.  The  apex 
of  my  pyramid  I  have  called  liberty  of  propaganda,  for 
if  a  man  may  not  express  himself,  he  might  as  well 
be  dead. 

This  is  a  principle  of  inquiry  solely.  I  have  no  wish 
to  make  it  a  Procrustean  bed  to  which  all  cases  must 
be  fitted  either  by  stretching  or  by  cutting  off.  I  have 
found  some  cases  which  do  not,  at  first  blush,  seem 
to  fall  naturally  within  any  of  the  categories;  it  has 
needed  but  a  little  more  intense  observation  to  see  that 
they  do  indeed  fit.  A.  F.  Shand  says  ^  that  "  Mill  con- 
ceived that  the  Science  of  Character  should  be 
'  founded  on  the  laws  of  psychology '  and  should  con- 
nect the  many  popular  generalizations  as  *  the  common 
wisdom  of  common  life,'  and  calls  them  '  empirical ' 
because  they  are  based  on  experience,  and  distinguishes 
them  from  the  scientific  or  'causal  laws,'  because  they 

*  A.  F.  Shand,  "  The  Foundations  of  Character,"  p.  13. 


METHODS  57 

are  not  universally  true.  They  hold,  he  tells  us,  within 
certain  limits,  but  we  do  not  know  what  those  limits 
are.  The  proverbs,  '  When  your  fortune  increases,  the 
columns  of  your  house  appear  to  you  crooked,'  and 
'  Love  is  blind,'  would  be  empirical  laws  in  Mill's  sense. 
They  are  true  of  a  great  number  of  cases  but  not  of  all. 
And  of  any  new  case  we  could  not  predict  whether  this 
would  be  an  exemplification  of  the  law,  or  an  exception 
to  it.  But  if  we  can  discover  why  it  is  that  Love  is  so 
often  blind,  or  why  it  is  that  as  a  man's  fortune  in- 
creases he  notices  the  defects  in  his  property  or 
imagines  such  as  do  not  exist,  then  '  in  the  propositions 
which  assign  those  causes  will  be  found  the  explana- 
tion of  the  empirical  laws,  and  the  limiting  principle 
of  our  reliance  on  them.'  " 

Now  the  study  of  cases  alone,  bare  cases,  cases 
which  should  indicate  merely  that  one  man  had  killed, 
stolen,  betrayed,  etc.,  and  that  society  had  done  so  and 
so,  would  lead  us  only  to  Mill's  empirical  laws;  but 
fortunately,  the  cases  usually  include  opinions  which 
assign  reasons  on  behalf  of  society  for  the  punishments 
inflicted.^  And  while  some  of  these  reasons  may  be 
purely  traditional,  while  there  is  a  vast  deal  of  mere 
copying  of  the  opinions  of  preceding  judges,  there  is 
always  to  be  observed  the  influence  of  original  minds 
upon  old  problems.  Not  the  least  significant  thing 
about  judicial  opinions  is  the  change  which  comes  over 

5  Where  statute  law  is  very  plain,  and  where  the  offense  is  of 
an  old  type  like  murder  or  theft,  the  opinions  are  usually  not  given. 
Either  they  are  obvious  or  they  must  be  sought  in  the  social  his- 
tory which  led  up  to  the  legislation. 


58  THE    PUBLIC    CONSCIENCE 

them  from  time  to  time.  And  these  opinions,  justifi- 
cations of  society's  behavior,  are  just  so  many  attempts 
at  theory.  They  are,  moreover,  the  attempt  at  theory 
made  by  men  who  have  observed  and  reflected  much. 
Their  opinions  are  interpenetrated  with  the  generaliza- 
tions, the  attempts  at  true  causal  explanation,  given 
by  the  great  commentators  on  the  law ;  the  Cokes,  the 
Fosters,  the  Austins,  the  Holmeses,  philosophers  of 
law. 

If  the  presentation  of  cases  as  arranged  in  this  book 
is  of  no  further  value,  it  will  at  least  serve  to  clarify 
the  ordinary  judgments  of  society,  upon  what  basis 
soever  they  are  or  have  been  made.  It  will  have  the 
value  of  glimpsing  from  a  height  the  road  which  we 
have  traversed.  Its  variation  from  the  road  we 
thought  we  were  taking  will  be  apparent. 

II 

For  the  purpose  of  this  study  we  need  not  consider 
the  atomistic  character  of  individuals  —  since  even  the 
law  does  not.  The  boast  of  equity  that  all  men  are 
equal  before  the  law,  is  not  only  contradicted  by  the 
greater  use  which  the  intelligent  and  the  well-to-do 
may  make  of  the  law,  but  by  the  fact  that  there  are 
many  classes  of  people  who  cannot  be  held  criminally 
liable  —  idiots,  children  and  the  insane.  Still,  within 
a  given  class,  say  of  male  citizens  of  New  York  State 
of  full  age  and  of  sound  mind,  all  are  treated  alike; 
they  are  treated  as  atoms.  And  as  this  is  not  a  study 
of  "  the  ought  "  but  of  "  oughts  "  it  is  of  distinct  value 


METHODS  59 

to  observe  that  all  are  treated  alike.  If  one  man  has 
influence  —  a  "  pull  "  with  the  court  —  and  another 
can  spend  money  freely,  these  are  interesting  facts 
which  explain  some  otherwise  inexplicable  decisions; 
but  they  do  not  invalidate  the  professed  morality  of 
the  state  toward  all  citizens,  nor  the  atomism  which 
is  not  only  latent  but  expressly  stated  in  constitutions 
and  declarations  which  proclaim  the  equality  of  all 
men.  That  this  equality  exists  only  in  name  I  have 
indicated  in  the  first  chapter  of  this  book.  It  would 
be  no  part  of  the  purpose  of  the  cases  here  used  to  say 
that  all  culprits  before  the  law  should  be  treated  in- 
dividually, for  we  do  not  use  the  word  which  implies 
an  obligation  not  yet  in  force.  It  is  part  of  our  pur- 
pose however  to  indicate,  however  briefly,  that  the  law 
already  approaches  this  ideal  in  the  giving  of  inde- 
terminate sentences,  in  the  establishment  of  Children's 
Courts  and  the  creation  of  probationary  officers. 

Ill 

My  method  is  also  frankly  behavioristic  in  character. 
It  takes  no  account  of  frustrated  or  incomplete  intents. 
The  man  who  hates  may  be  a  murderer,  the  man  who 
lusts  an  adulterer;  but  unless  the  hate  of  the  one  or 
the  lust  of  the  other  has  effect  in  a  blow  or  a  ravish- 
ment, the  law  of  the  land  is  indifferent.  It  is  on  this 
basis  that  Becker  and  the  Haymarket  Anarchists  here- 
after cited  were  condemned ;  that  their  influences  were 
acts,  observable  by  all  men.  The  modern  behavior- 
istic psychology  seeks  to  tell  the  nature  of  the  mind 


60  THE    PUBLIC    CONSCIENCE 

from  the  character  of  the  organic  acts.  So  we  seek 
to  know  the  conscience  of  the  public  through  its  overt 
acts.  Where  the  State  imposes  no  penalty  the  State 
is  indifferent.  It  will  be  well  to  remember,  however, 
that  the  individual  does  not  go  scot  free  merely  be- 
cause he  never  gets  in  jail,  never  is  fined  by  a  court. 
Our  study  would  still  be  behavioristic  if  it  extended  to 
social  ostracisms,  etc.,  as  it  properly  might  do.  There 
can  be  no  social  ostracism  without  an  act,  even  if  that 
act  be  merely  a  refusal  to  act. 

It  is  obvious  that  we  cannot  use  the  method  so 
common  to  laboratory  work  in  other  sciences,  the 
method  of  experimentation;  but,  as  Comte  has  said, 
that  is  unnecessary  since  history  has  done  our  experi- 
menting for  us.  A  study  of  origins  and  a  comparison 
of  social  practises  in  various  states  and  times  with 
respect  to  similar  offenses  will  give  us  abundant  scien- 
tific material. 

I  am  convinced  that  this  study,  even  more  than 
most,  requires  the  meeting  of  many  minds;  and  I 
have  found  great  practical  difficulty  in  getting  aid 
from  others  because  few  if  any  scholars  seemed  to 
know  just  what  I  meant  by  "  cases  of  conduct "  until 
they  had  seen  some  of  the  actual  cases  used.  Ever 
since  the  publication  of  my  first  paper  on  this  subject 
in  June,  1913,  I  have  received  requests  from  teachers 
of  philosophy  and  others  to  publish  cases.  Now  cases, 
to  be  really  instructive,  must  be  in  considerable  bulk; 
and  the  columns  of  philosophic  publications  have  not 
been  open  to  such  bulky  contributions.    This  book  is 


METHODS  61 

therefore  published  as  soon  as  possible  in  order  that 
by  actual  use  in  class  rooms  other  cases  may  be  found, 
specially  those  "  negative  instances "  which  Bacon 
rightly  deemed  of  such  importance.  Law  Case  Books 
are  very  bulky  affairs,  containing  hundreds  of  cases,  set 
forth  at  great  length.  A  future  "  Case  Book  in  Ethics  " 
should  contain  much  more  material  than  is  here;  but 
until  many  investigators  are  at  work,  that  is  hardly 
possible.  I  shall  look  too,  hopefully,  for  drastic 
criticism  of  method,  especially  from  teachers  and  stu- 
dents of  sociology. 

IV 

I  anticipate  that  the  charge  of  sociology  will  be 
brought  against  this  work;  and  it  is  indeed,  in  its 
present  state,  largely  a  sociological  study.  I  do  not 
yet  put  forth  any  ethical  theory  growing  out  of  this 
study  which  would  put  me  on  my  defense.  But  I  re- 
ply in  anticipation  by  referring  critics  to  Durkheim 
and  to  Levy-Bruhl,  who  are  amply  able  to  support  the 
claim  that  social  facts  are  objective  whether  ethical 
or  other.  And  as  all  my  purpose  in  this  collocation 
of  cases  has  been  to  present  significant  ethical  facts 
for  study,  I  may  rest  my  case. 

It  may  be  asked,  what  principle  of  selection  has  been 
used?  What  guarantee  has  the  reader  that  the  cases 
here  used  are  not  abnormal  cases? 

There  are  no  abnormal  cases  for  such  a  study  as 
this.  The  abnormal  is  sufiiciently  difiicult  to  estab- 
lish in  any  event,  as  economists  have  discovered  in 


62  THE    PUBLIC    COXSCIEXCE 

the  matter  of  prices;  so  that  we  may  be  thankful. 
James  and  Starbuck  were  accused  by  many  of  having 
dealt  wholly  with  abnormal  cases  in  their  studies  of 
religious  phenomena,  and  Durkheim  has  been  at  some 
pains  to  define  what  the  normal  may  be  in  sociology. 
We  have  no  such  difficulty,  yet  should  this  study  by 
cases  secure  sufficient  attention  from  students  of  ethics, 
doubtless  the  normal  and  the  abnormal  will  eventually 
develop.  At  present  we  have  not  the  problem.  All 
is  grist  that  comes  to  our  mill.  But  we  may  at  any 
rate  note  that  the  cases  used  as  standards  in  all  of 
our  classifications  are  taken  either  from  approved  law 
case  books  or  from  constitutions  and  statutes,  or  from 
the  decisions  of  the  most  eminent  judges,  though  in 
some  instances,  for  want  of  reported  cases  in  a  par- 
ticular category,  I  have  had  recourse  to  the  newspapers 
and  to  generally  known  conditions.  They  are  not 
freak  cases.  We  might  indeed  say  that  there  is  a 
normality  of  procedure  in  peace  which  is  completely 
overthrown  in  times  of  war;  we  might  say  that  deci- 
sions like  that  in  the  Frank  case  are  abnormal  inas- 
much as  race  prejudice  was  so  undeniable.  I  would 
prefer  not  to  call  either  of  these  instances  abnormal 
but  rather  to  consider  them  the  limits  of  ordinary 
beha\dor. 

Finally,  it  is  obvious  that  the  method  is  the  method 
of  legal  case  study.     Professor  Powell  has  said,^  "  That 

«  Thomas  Reed  Powell,  "  The  Study  of  Moral  Judgments  by 
the  Case  Method,"  in  the  Jownai  of  Philosophy,  etc.,  1913,  at 
pp.  485  ff. 


METHODS  63 

this  system  of  case  study  furnishes  valuable  training 
in  subtlety  of  judgment  or  of  intuition,  is  generally 
conceded  by  those  most  familiar  with  it "  ;  and  he 
further  enlarges  upon  its  value  for  teaching,  but  he 
cites  the  "  fond  saying  at  the  Harvard  Law  School 
that  the  case  method  does  not  teach  us  the  law,  but 
that  it  gives  us  the  legal  mind."  I  submit,  with  defer- 
ence, that  if  this  is  not  teaching  the  law,  it  is  teaching 
nothing.  While  it  may  seem  merely  to  be  training 
men  in  a  certain  expertness,  in  what  I  have  called  art, 
it  is  clear  from  the  character  of  the  expertness  that 
students  have  really  learned  the  law  itself,  though, 
for  particular  occasions,  they  may  find  it  necessary 
to  look  up  authorities  and  cite  decisions.  I  protest 
that  the  law  is  discovered  in  this  fashion  and  I  beheve 
that,  even  from  the  few  cases  collected  here,  there 
may  be  gleaned  a  very  clear  knowledge  of  the  great 
outlines  of  the  morality  actually  practised  in  states. 
And,  while  it  has  been  no  part  of  my  plan  to  write  a 
manual  for  the  teaching  of  ethics,  it  seems  to  me  that 
the  method  set  forth  by  Professor  Powell  m  the  article 
referred  to  may  well  be  applied  to  teaching  ethics  by 
the  Case  Method. 

I  hope  that  this  book  may  prove  useful  in  class  room 
teaching  whatever  any  man's  views  of  ethics  may  be. 
There  is  in  it  nothing  of  propaganda,  except  the  idea. 
There  is  no  position  taken  for  or  against  any  social 
reform.  I  have  desired  honestly  to  find  out  how  states 
behave,  especially  our  own  State  —  the  United  States 
of  America;  and  the  Great  Britain  from  which  we  de- 


64.  THE    PUBLIC    CONSCIENCE 

rive  not  only  our  Common  Law  but  also  our  Common 
Morals.  Such  conclusions  as  I  shall  draw  at  the  end 
of  each  large  classification  are  sincerely  deduced  from 
the  facts,  so  far  as  I  know;  and  if  these  conclusions 
do  not  follow  from  the  facts,  I  shall  be  most  grateful 
to  any  one  who  will  point  it  out  or  produce  new  facts 
which  will  otherwise  invalidate  my  tentative  laws. 

In  conversation  with  Professor  Josiah  Royce  some 
years  ago  I  humbly  disclaimed  any  power  to  know  the 
absolute  Truth  about  anything;  but  declared  my  alle- 
giance to  a  less  arrogant  and  more  satisfactory  mis- 
tress, the  Goddess  Veracity.  That  great  and  lamented 
scholar  laughingly  retorted  that  she  was  a  barren  god- 
dess. My  answer  is  that  she  is  barren  only  when  not 
espoused. 

I  can  think  of  nothing  more  likely  to  advance  the 
well-being  of  mankind  than  a  frank,  sincere,  unafraid 
scrutiny  of  its  actual  behavior.  It  is  often  painful  to 
know  that  kind  of  verifiable  truth ;  but  it  is  generally 
—  perhaps  always  to  a  sound  and  healthy  soul  —  salu- 
tary. And  I  have  some  satisfaction  in  thinking  that, 
whether  my  readers  agree  or  disagree  with  the  conclu- 
sions I  tentatively  draw,  if  they  will  but  read  the  cases 
themselves  and  be  incited,  even  by  indignation  it  may 
be,  to  find  others,  my  main  purpose  will  have  been 
accomplished. 


PART    I 


PRESERVATION    OF    LIFE    AND    LIMB 


PRECEDED    BY 


EXPLANATORY  INTRODUCTORY  MATTER 


AND 


A   BRIEF    HISTORY    OF    HOMICIDE 


PRESERVATION   OF   LIFE   AND   LIMB 

The  cases  which  form  the  material  for  a  science  of 
ethics  have  a  wide  range  of  objectivity  and,  as  I  may 
say,  of  density.  One  can  study  only  those  cases  which 
are  characterized  by  overt  and  measurable  action. 
Moreover  the  subtler  cases  of  jealousy,  malignancy, 
envy,  and  their  converses,  will  always  elude  any  kind 
of  analysis  except  that  of  the  great  masters  of  fiction. 
We  can  learn  more  of  human  nature  and  its  springs 
from  Goethe,  Cervantes,  Moliere,  Shakespere,  Dickens, 
Ibsen,  Henry  James  and  George  Meredith  than  we  can 
from  any  statistical  study  however  profound  and  accu- 
rate. But  these  same  subtler  passions  cannot  exist 
without  producing  action  which,  sooner  or  later,  brings 
about  punishments  and  rewards  in  courts  of  law  and 
other  tribunals,  tribal  or  familial,  of  a  similar  character. 
It  would  be  as  idle  to  expect  to  understand  man  as 
man  by  the  study  of  the  bony  skeleton  or  of  anatomy 
as  to  expect  to  understand  his  conduct  from  a  study 
of  that  extremest  form  of  it  which  results  in  his  de- 
stroying another  man  or  men.  Yet  as  anatomy  is 
fundamental,  so  is  homicide. 

The  most  serious  of  offenses  in  the  present  state  of 
society,  one  whose  punishment  is  usually  the  death 
sentence,  is  homicide.  But  the  mere  taking  of  life  is 
not  in  itself  and  perhaps  never  has  been  the  most 
serious  of  offenses. 

67 


68  THE    PUBLIC    CONSCIENCE 

Sacrilege  ^  in  many  ages  and  places  and  treason 
always,  in  its  extreme  form  of  direct  attack  upon  the 
integrity  of  a  state,  are  more  serious ;  but  they  cannot 
be  punished  more  severely  than  murder.  Indeed 
murder  and  high  treason  may  be  put  on  a  par ;  though 
punishment  of  high  treason  was  until  a  comparatively 
late  date  in  England  (1870)  of  a  most  barbarous 
character.^ 

We  tend  to  form  our  moral  judgments  through 
epithets  which  praise  or  condemn.  Murder  and  treason 
are,  of  course,  murder  and  treason,  i.e.,  we  have  no 
words  of  a  severer  kind,  no  things  which  are  habitually 
condemned  more  fully;  but  the  particular  acts  which 
are  now  called  by  those  names  were  not  always  re- 
garded in  the  same  light  —  and  we  can  see,  in  our  own 
lifetime,  changes  coming  over  the  judgments  of  men. 
Moreover,  while  we  may  pass  statutes  declaring  that 
wilful,  malicious  and  premeditated  homicide  is  murder 
(following  common  law  practice)  and  shall  be  punished 

1  But  for  this  cf.  Hobhouse,  "  Morals  in  Evolution,"  p.  76. 

"  Our  Leges  Henrici  still  distinguish  emendable  offenses,  in 
which  sacrilege  and  wilful  homicide  without  treachery  are  included, 
from  unemendable  offenses  such  as  house  breaking,  arson,  open  theft, 
aggravated  homicide,  treason  against  one's  lord  and  breach  of  the 
church's  or  the  King's  peace." 

Observe  also  that  many  of  the  punishments  for  what  we  would 
call  murder  contemplate  no  objection  to  murder  as  a  sin  but  are 
merely  precautions  —  a  man  has  the  death  infection  about  him 
or  the  ghost  of  the  slain  is  after  him.  It  is  well  to  avoid  him  or 
dispose  of  him  in  some  way. 

2  Cf.  for  the  whole  subjoct  of  Treason  the  article  on  that  sub- 
ject in  the  Encyclopedia  Britannica,  11th  ed.  There  was,  in  its 
punishment,  an  attempt  to  carry  over  the  punishment  beyond  de- 
struction of  the  physical  life  into  posthumous  disgrace. 


PRESERVATION    OF    LIFE    AND    LIMB       69 

by  death  or  by  life  imprisonment  at  hard  labor  or  by 
some  other  punishment,  the  obvious  state  of  things 
is  that  a  great  many  people  have  unquestionably  com- 
mitted murder  who  are  not  thus  punished  —  and  so- 
ciety as  a  whole  is  not  much  disturbed,  if  at  all. 

And  when  one  uses  the  word  "  society  "  in  this  way 
it  is  well  to  be  somewhat  more  explicit.  We  cannot 
use  the  behavior  of  a  tyrant  to  express  the  will  of  a 
society;  rather  should  we  observe  the  revolts  against 
his  will  in  the  face  of  danger  or  death.  Absolute  mon- 
archs  may  believe  that  they  represent  the  will  of  God 
but  it  would  hardly  be  an  empirical  study  if  we  ex- 
amined their  conduct  in  order  to  find  out  what  the 
will  of  God  is! 

It  would  be  hopeless  and  useless  to  attempt  to  col- 
late all  the  behavior  of  men  with  respect  to  homicide, 
for  it  is  obvious  that  some  of  the  worst  crimes  have 
been  committed  in  the  name  of  the  law.  The  powerful 
can  always  override  justice;  but  the  time  during  which 
they  can  do  this  is  usually  strictly  limited.  What 
we  want  to  observe  is  the  action  of  groups  where 
there  is  the  substance  as  well  as  the  form  of  law,  i.e., 
where,  however  ignorantly,  the  group  lays  down  a 
principle  which  it  could  wish  to  see  applied  to  every 
member  of  the  group.  This  throws  light  upon  actual 
moral  procedure.  Let  us  guard,  however,  against  too 
strict  an  interpretation  of  the  word  "  principle."  No 
one  laid  down  principles  until  the  days  of  the  great 
commentators  upon  the  law.  The  "  principle  of  be- 
havior "  which  was  recognized  as  binding  upon  mem- 


70  THE    PUBLIC    CONSCIENCE 

bers  of  a  group  may  have  any  origin  you  wish.  It 
could  never  be  violated  with  impunity.  What  we  seek 
is  a  natural  history  of  Killing.^ 

Such  a  subject  is  large  and  might  be  handled,  profit- 
ably, in  many  ways.  Any  ultimate  study  must  take 
up  the  change  in  attitude  towards  Killing  in  the  differ- 
ent races  and  nations.  As  a  preliminary  to  such  a 
study  I  submit  the  following  brief  outline  of  the  history 
of  homicide.  Inasmuch  as  it  is  not  my  purpose  to 
make  a  purely  jural  study,  this  outline  must  suffice. 
In  the  light  of  Professor  Ehrlich's  studies*  in  what 
he  calls  the  living  law,  I  question  whether  there  would 
be  any  advantage  in  making  a  purely  jural  study. 

An  Outline  History  of  Homicide 

The  facts  in  respect  to  homicide  have  been  collected 
by  many  scholars,  with  a  fulness  which  I  could  not 
hope  to  rival  here  even  if  it  were  desirable.  Some  of 
the  sources  are  here  indicated. 

"  Origin  and  Gro\\^h  of  the  Moral  Instinct,"  A.  Suther- 
land; especially  Vol.  II,  pp.  160-161. 

"  Origin  and  Development  of  the  Moral  Ideas,"  E. 
Westermarck. 

"  Morals  in  Evolution,"  L.  T.  Hobhouse. 

"  Evolution  of  Law  Series,"  Vol.  I,  Kocourek  and  Wig- 
more. 

3  Cf .  Stephen  "  Criminal  Law  (History  of)  in  England,"  Vol.  I, 
pp.  107,  108. 

*  Professor  Eugen  Ehrlich,  an  account  of  whose  work  may  be 
found  in  an  article  by  Professor  W.  H.  Page  in  the  Proceedings  of 
the  Association  of  American  Law  Schools.    Chicago,  1914,  p.  46. 


PRESERVATION    OF    LIFE    AND    LIMB       71 

"  The  Structure  of  Greek  Tribal  Society,"  H.  E.  Seebohm. 

"  The  Tribal  System  in  Wales,"  F.  Seebohm. 

"  The  Ancient  Hebrew  Law  of  Homicide,"  M.  Sulzberger. 

"  Ancient  Society,"  L.  H.  Morgan. 

"  A  Manual  of  Greek  Antiquities,"  Gardner  and  Jevons. 

"  Folkways,"  W.  G.  Sumner. 

1.  (a)  The  earliest  times  and  primitive   societies  today 

either  approve  whole-heartedly  or  at  least  do  not  con- 
demn killing  of  members  of  other  groups,  whether  in 
war  (when  of  course  it  is  honorable)  or  in  peace.  The 
blood  fine  was  paid  when  necessary  to  the  injured 
group,  or,  in  some  cases,  another  person  was  handed 
over  to  be  killed  in  the  stead  of  the  first  killed.  Blood 
feuds  in  some  kind  persists  today  in  Corsica,  Albania 
and  the  southwest  of  the  United  States  of  America. 

(b)  Homicide  appears  to  have  been  very  rare  within  the 
group  in  early  days  —  and  is  so  now  among  primitive 
peoples.  Among  some  there  was  the  lex  talionis;  but 
generally  the  blood  fine  was  paid  to  the  injured  family 
or  to  the  tribe  as  a  whole  as  represented  in  the  person 
of  the  chief  or  king. 

(c)  In  the  earliest  codes  —  which  represent  a  very  ad- 
vanced state  of  society  —  legal  killing  of  offenders 
was  universal  and  inflicted  for  a  great  variety  of 
offenses. 

{d)  Homicides  are  all  of  one  kind  —  accidental  and 
murderous  killing  pay  the  same  penalty. 

2.  (a)  The  second  stage  may  be  illustrated  by  the  case  of 

the  Hebrew  people  who,  at  least  after  the  codification 
of  their  laws,  recognized  individual  guilt;  and  gradu- 
ally repudiated  the  blood  fine.  They  also  separated 
kinds  of  homicide  and  developed  the  crime  of  murder 
and  blood  guiltiness  —  though  the  idea  of  a  Cain  with 
the  curse  of  man  and  God  on  him  must  be  very  late 
in  Hebrew  history. 


72  THE    PUBLIC    CONSCIENCE 

(6)  Here  belong  the  homicides  of  Greek  mythical  his- 
tory, wherein — though  the  idea  of  murder  is  not  de- 
veloped —  guilt  because  of  sacrilege  for  one  reason  or 
another  was  found. 

3.  Among  the  Greeks  of  a  later  time,  intent  to  kill  became 
necessary  to  the  crime  of  murder.  The  penalty  was 
death  and  confiscation  of  property  if  the  accused  chose 
to  stand  trial.  He  could  withdraw  before  the  end  of 
the  trial  into  exile  —  in  which  case  his  property  was 
confiscated  and  he  was  exiled  for  life.  A  possible  ex- 
ception to  the  privilege  of  exile  was  the  case  of  parricides. 

For  involuntary  homicides,  exile  alone  was  the  penalty, 
and  small  distinction  was  made  between  its  different 
kinds.  The  involuntary  homicide  might  compound  with 
the  next  of  kin  of  the  clan  and  reduce  his  exile  to  a 
merely  nominal  thing. 

It  is  a  highly  modern  and  sophisticated  attitude  here 
revealed;  e.g.,  instigation  to  crime  incurred  the  same 
penalties  as  murder  —  but  for  the  murder  of  a  slave  all 
one  had  to  do  was  to  purify  himself  for  religious  reasons. 

4.  "  In  England  under  the  Norman  rule  homicide  became 
a  plea  of  the  Crown  and  the  rights  of  the  kindred  to 
private  vengeance  and  to  compensation  were  gradually 
superseded  in  favor  of  the  right  of  the  King  to  forfeitures 
where  the  homicide  amounted  to  a  crime  (felony)." 
"After  the  Conquest  and  for  the  protection  of  the  ruling 
class  a  fine  (called  murdrum)  was  levied  for  the  King 
on  the  hundred  or  other  district,  in  which  a  stranger  was 
found  dead,  if  the  slayer  was  not  brought  to  justice  and 
the  blood  kin  of  the  slain  did  not  present  Englishry, 
there  being  a  presumption  (in  favor  of  the  Exchequer) 
that  the  deceased  was  a  Frenchman.  After  the  assize 
of  Clarendon  (1166)  the  distinction  between  the  killing 
of  Normans  and  Englishmen  gradually  evaporated  and 
the  term  murder  came  to  have  its  present  meaning  of 


PRESERVATION    OF    LIFE    AND    LIMB       73 

deliberate  as  distinct  from  secret  homicide.  .  .  .  But 
at  that  date  and  for  a  long  time  after  homicide  in  self- 
defense  required  a  pardon.  It  was  not  until  1828  that 
the  innocence  of  excusable  homicide  was  expressly 
declared."  ^ 
5.  The  modern  law  of  homicide  is  now  a  matter  of  pretty 
general  agreement  among  the  civilized  nations.  It  is 
stated  in  Commonwealth  v.  Webster,  q.  v.^ 

The  modern  law  makes  no  distinctions  as  to  persons 
killed,  fellow  countryman  or  foreigner,  Lund  or  free; 
though  extradition  laws  are  not  universal.  The  killing 
of  any  man  for  private  reasons,  not  in  the  order  of  duty 
to  the  state,  is  a  crime  against  society,  though  we  shall 
see  that  the  old  distinction  still  holds  as  to  foreigners 
and  subject  people,  or  those  who  have  been  subject,  how- 
ever attenuated  it  may  be  in  practice. 

The  outline  is  given  in  lieu  of  cases  under  the  dif- 
ferent civilizations  mentioned  which  cannot  now  be 
had.  The  law  indicates  the  intent  rather  than  the 
practise  —  and  practise  is  much  more  significant  than 
formal  principles  or  edicts.  For  example,  it  is  plain 
that  the  blood  feud  as  nominally  practised  in  the  past 
—  and  even  in  our  own  Southwest  —  would  result  in 
the  speedy  extermination  of  the  feudists. 

We  must  remember  also  that  no  truly  democratic 
or  constitutional  governments  existed  until  modern 
times.  The  law,  in  its  rigor,  never  held  for  privileged 
classes.  The  most  striking  example  of  this  was  that 
"  benefit  of  clergy  "  which  exempted  all  in  orders,  of 
any  sort,  from  the  temporal  jurisdiction  in  England 
until  a  comparatively  late  date. 

5  Encyc.  Brit.,  11th  ed.  «  See  below,  p.  83. 


74  THE    PUBLIC    CONSCIENCE 

I  have  not  attempted  to  give  any  outline  of  the 
history  of  assaults,  which  are  all  lesser  degrees  of 
homicide;  since  they  are  always,  when  felonious,  but 
incomplete  attacks  upon  the  person;  though  many 
of  them  are  not  intended  to  be  homicidal. 

The  outline  which  follows  is  self-explanatory. 


I.    Always  repro 


II.    Sometimes  rt 
often  not. 


KINDS   OF   KILLING   PRACTISED   IN  HUMAN   SOCIETY 
ILLEGAL 


I.    Always  reprobated. 


Murder 

Manslaughter 

Killing  by  wilful  neglect    (of  wliifh  there 


II,    Sometimes  reprobated, 
often  not. 


Accidental  —  In  ancient  times  the  thing  or  pers 

ishcd.     In  modern  times,  no  pimishment  except  liability  to  damages 
under  civil  action. 

Self-Defense  —  In  ancient  times  this  was  homicide  Uke  any  other.     In 
modern  days  it  is  approved. 

Defense  of  others  —  Same  as  Self-Defense.     It  is  usually  praised. 

Suicide  —  In  former  times  generally  considered  sacrilegious.     In  modern 
tinios,  no  punishment,  if  successful. 

Dueling  —  Laws  generally  condemn,  but  public  opinion  divided.     Punish- 
ment often  negligible. 

Euthanasia  —  The  merciful  killing  of  the  unfortunate.     No  laws  per- 
mitting, generally  condemned  by  public  opinion. 


in.    l^ot  reprobated  by  the 

group  as  such;  but 
considered  painfully 
necessary  rather  than 
attractive  or  honor- 
able. 


LEGAL 

Executions  of  all  kinds  —  The  acts  of  hiingmen,  of  judges  and  juries, 
executive  officers,  including  police. 
(n)  Formal  executions. 
{b)  Killing  of  prisoners  attempting  to  escape. 
(c)  Shooting  down  rioters,  quelling  mutineers,  etc. 


• 


SEMI-LEGAL 

f   All  the  above  acts  when  dtme  by  Vigilantes,  lynchers,  Ku  Klux  Klan,  etc. 


/  Assassination  of  political  tyrants —  Condemned  and  punished  by  the  party 
\  of  tlie  tyrant  but  approved  by  many  others. 


VI.    Praiseworthy. 


I  All  killing  of  enemies  in  war;    But  only  within  the  rules  of  warfare. 
\  Sacrificing  victims  in  worship  —  Suttee,  etc. 


SOME   EXCERPTS   FROM   HISTORY 

Solon,   in   "  Plutarch's   Lives " 

"  First,  then,  he  repealed  all  Draco's  laws,  excepting 
those  concerning  homicide,  because  they  were  too  se- 
vere and  the  punishments  too  great;  for  death  was 
appointed  for  almost  all  offenses,  insomuch  that  those 
who  were  convicted  of  idleness  were  to  die,  and  those 
that  stole  a  cabbage  or  an  apple  to  suffer  even  as 
villains  that  committed  sacrilege  or  murder."  Draco 
had  been  asked  why  he  made  death  the  punishment 
of  most  offenses.  He  replied  "  Small  ones  deserve  that, 
and  I  have  no  higher  for  the  great  crimes." 

This  is  the  sum  of  what  is  recorded  about  Solon. 
The  implication  is  plain  that  homicide,  probably  with 
little  discrimination,  was  punished  with  death  —  at 
least  that  such  was  the  statute.  There  was  no  ransom 
for  the  slayer. 

"  Caesar's  Commentaries,"  Book  VI,  Ch.  XIX 

"  Husbands  have  power  of  life  and  death  over  their 
wives,  as  well  as  over  their  children;  and  when  the 
father  of  a  family,  born  in  a  more  than  commonly 
distinguished  rank,  has  died,  his  relations  assemble, 
and,  if  the  circumstances  of  his  death  are  suspicious, 
hold  an  investigation  upon  the  wives  in  the  manner 

75 


76  THE    PUBLIC    CONSCIENCE 

adopted  towards  slaves;   and,  if  proof  be  obtained, 
put  them  to  severe  torture  and  kill  them." 

Tacitus.    A  Treatise  on  the  Situation,  Manners 
and  People  of  Germany,  Ch.  XII 

"  In  this  council  of  the  state,  accusations  are  ex- 
hibited and  capital  offenses  prosecuted.  Pains  and 
penalties  are  proportioned  to  the  nature  of  the  crime. 
For  treason  and  desertion,  the  sentence  is  to  be  hanged 
on  a  tree;  the  coward,  and  such  as  are  guilty  of  un- 
natural practises,  are  plunged  under  a  hurdle  into 
bogs  and  fens." 

Ch.  XXI.  "  Injuries  are  adjusted  by  a  settled 
measure  of  compensation.  Atonement  is  made  for 
homicide  by  a  certain  number  of  cattle,  and  by  that 
satisfaction  a  whole  family  is  appeased." 

The    Tribal   System   in    Wales 

(F.  Seebohm,  Longmans,  Green  &  Co.,  New  York,  1895.) 

(P.  58,  from  the  Gwentian  Code)  "  Three  persons 
hated  by  a  kindred;  a  thief,  and  a  deceiver,  and  a 
person  who  shall  kill  another  of  his  own  kindred; 
since  the  living  kin  is  not  killed  for  the  sake  of  the 
dead  kin  everybody  will  hate  to  see  him." 

Such  a  criminal  as  the  last-mentioned,  whose  crime, 
being  within  his  own  kindred,  was  outside  the  law  of 
galanas  or  "  blood  fine,"  could  not  be  slain.  He  might, 
however,  with  the  consent  of  his  kindred,  relinquish 
the  privilege  of  kinship.     {Comment  by  Seebohm) 


SOME    EXCERPTS    FROM    HISTORY        77 

(Also  p.  57,  quoted  from  "  Ancient  Laws  of  Wales" 
II,  pp.  315  ff.)  If  a  person  be  killed  and  his  kindred 
shall  not  obtain  right  and  his  kinsmen  proceed  to 
avenge  their  kin  .    .    . 

(P.  59)  By  one  thing  alone  could  the  tie  of  kinship 
be  absolutely  broken,  viz.,  by  a  man's  life  being  for- 
feit for  crime,  such  as  the  murder  of  his  chief  of  kin- 
dred. For  such  a  criminal  the  gulf  was  opened  and 
could  only  be  bridged  by  his  descendents  ...  in  the 
ninth  generation.  ...  In  such  a  case  the  criminal 
was  banished  from  Cymru,  and  "  it  was  required  of 
every  one  of  every  sex  and  age  within  hearing  of  the 
horn  to  follow  that  exile,  and  to  keep  up  the  barking 
of  dogs,  to  the  time  of  his  putting  to  sea,  until  he  shall 
have  passed  three  score  hours  out  of  sight." 

(Pp.  104-105)  *'  The  payment  of  galanas  (blood 
fine)  was  ...  a  matter  between  two  kindreds." 
At  first  it  may  have  been  the  subject  of  bargain  be- 
tween two  kindreds.  Later  it  became  a  matter  of 
tribal  law.  "  There  was  then,  so  to  speak,  the  inter- 
vention of  a  kind  of  international  law  and  authority, 
superseding  the  lynch  law  or  blood  feud  between  the 
kindreds." 

(P.  106)  "  Even  within  the  tribe  and  the  kindred 
the  value  of  one  man's  life  was  greater  than  another's." 

(Morgan,  L.  H.,  "  Ancient  Society."  H.  Holt,  1878, 
p.  95.)  "  When  a  murder  had  been  committed  it  was 
usual  for  the  gens  of  the  murdered  person  to  meet  in 
council  (said  of  the  phratries  of  the  Iroquois) ;  and, 
after  ascertaining  the  facts,  to  take  measures  for  aveng- 


78  THE    PUBLIC    CONSCIENCE 

ing  the  deed.  The  gens  of  the  criminal  also  held  a 
council,  and  endeavored  to  effect  an  adjustment  or 
condonation  of  the  crime  with  the  gens  of  the  murdered 
person.  But  it  often  happened  that  the  gens  of  the 
criminal  called  upon  the  other  gentes  of  their  phratry, 
when  the  slayer  and  the  slain  belonged  to  opposite 
phratries,  to  unite  with  them  to  obtain  a  condonation 
of  the  crime.  .  .  .  They  offered  reparation  to  the 
family  and  gens  of  the  murdered  person  in  expressions 
of  regret  and  in  presents  of  value.  .  .  .  The  Grecian 
phratry,  prior  to  civilization,  assumed  the  principal, 
though  not  exclusive,  management  of  cases  of  murder." 

Kajir   Laws   with   Respect    to   Murder 

("Evolution  of  Law"  Series,  Vol.  I,  pp.  296  ff.) 

Persons  are  considered  the  property  of  the  chief. 

Fines  are  imposed  for  acts  of  violence  committed 
on  the  person  —  cases  of  "  blood  "  are  accordingly 
claimed  by  him,  and  the  person  or  family,  whose  blood 
has  been  shed,  receives  no  part  of  it.  A  man's  goods 
are  his  own  property  but  his  person  is  his  chief's. 
"  No  man  can  eat  his  own  blood  "  is  the  maxim  which 
regulates  procedure;  and  as  the  fines  levied  for  per- 
sonal injuries  are  considered  the  price  of  blood,  who- 
ever shall  receive  any  part  of  such  fine  in  a  case  where 
he  had  himself  been  the  sufferer,  would  be  regarded 
as  violating  this  maxim. 

The  penal  sanctions  of  Kafir  law  resolve  themselves 
into  the  general  system  of  pecuniary  fines,  varying 


SOME    EXCERPTS    FROM    HISTORY        79 

according  to  circumstances  from  a  single  head  of  cattle 
to  the  entire  confiscation  of  property.  The  exceptions 
to  this  are,  cases  of  assault  on  the  persons  of  wives  of 
the  chiefs,  and  what  are  deemed  aggravated  cases  of 
witchcraft.  These  usually  involve  the  punishment  of 
death,  very  summarily  inflicted.  This  punishment, 
however,  seldom  follows  even  murder,  when  committed 
without  the  supposed  aid  of  supernatural  powers ;  and 
as  banishment,  imprisonment  and  corporal  punishment 
are  all  unknown  to  Kafir  jurisprudence,  the  property 
of  the  people  constitutes  the  great  fund  out  of  which 
the  debts  of  justice  are  paid. 

Personal  influence  and  favoritism  affect  the  amount 
of  the  fine. 

Tambooki    (Kafir)    Usages 

("Evolution  of  Law,"  Series,  Vol.  I,  p.  315.) 

There  is  little  distinction  between  murder  and  any 
other  kind  of  homicide.  Compensation  is  insisted 
on  even  when  a  person  charged  with  sorcery  dies  under 
official  torture;  and  all  fines  go  to  the  chief. 

So  with  fights;  and  even  death  from  natural  causes 
unless  the  chief  is  formally  and  immediately  made 
acquainted  with  the  facts. 

Among    the   Fantis 
("  Evolution  of  Law  "  Series,  Vol.  I,  p.  328) 

When  a  member  of  the  family  was  sold  or  pawned 
he  ceased  to  be  a  member  and  lost  all  his  rights  — 


80  THE    PUBLIC    CONSCIENCE 

but  he  could  be  reclaimed  and  regain  his  rights  —  but 
"  when  a  person  through  misconduct  was  expelled 
from  the  family,  or  was  sold  and  got  rid  of  by 
the  family  after  due  deliberation,  he  ceased  to  be  a 
member  of  the  family,  even  if  his  master  gave  him  his 
freedom." 

Illustration  of  punishment  which  is,  by  analogy,  the 
same  as  death. 

Ancient    Times  —  Law   of  Hammurabi 

(2250  [?]  B.C.) 

Killing  a  free-born  man,  penalty  ^  mina  of 
silver. 

Killing  a  freedman,  penalty  ^  mina  of  silver. 

For  assaults,  lex  talionis  and  compensation,  includ- 
ing case  of  death  from  assault.^ 

The  death  penalty  is  imposed  for  the  following 
causes : 

False  accusation,  or  serious  accusation  not  properly 
attested;  selling  stolen  goods,  robbing  temples  (sacri- 
lege) —  (sometimes,  restitution  30  fold  and  if  one  has 
nothing  to  pay  with,  then  death) ;  kidnapping;  burg- 
lary; highway  robbery;  malfeasance  in  office;  getting 
a  substitute  (if  a  soldier)  when  on  the  King's  business; 
rape;  adultery  (both  parties  to  be  drowned  though 
they  may  be  pardoned) ;  remarriage  of  a  woman  whose 
husband  is  captive  in  war,  unless  she  is  forced  to  it  by 
hunger;   gadding  about  and  extravagance;   killing  a 

^  Observe   that   this   is   not  entirely   consistent   since    the   lex 
talionis  would  require  a  life  for  a  life  always. 


SOME    EXCERPTS    FROM    HISTORY        81 

husband  (she  shall  be  impaled) ;  incest  with  a  mother 
(both  to  be  burned) ;  negligence  in  building  which 
results  in  death  of  owner  (if  it  kill  son  of  owner,  son 
of  builder  shall  be  put  to  death;  if  it  kill  a  slave,  just 
give  him  another!) 

Ancient   Hebrew   Law   of   Homicide  ^ 

The  Canaanite  law  of  homicide  is  inferred  from  the 
laws  of  Hammurabi  (c.  2250  b.c.)  which,  although  they 
antedated  the  crossing  of  the  Jordan  (1280  b.c.)  by 
nearly  a  thousand  years  were  yet  "  still  studied  in 
Assyria  fifteen  hundred  years  after  publication  and 
five  hundred  years  after  that  were  made  a  textbook 
in  the  Babylonian  schools." 

The  Canaanite  law  then  did  not  make  the  killing 
of  a  man  a  crime  cognizable  by  the  state,  but  a  trespass, 
"  which  gave  the  family  of  the  deceased  a  right  to  re- 
dress. There  was  no  inquiry  as  to  the  motive,  and 
there  were  no  degrees  of  liability.  This  absolute  right 
of  redress  .  .  .  was  the  right  to  kill  the  perpetrator 
or  an  equally  important  member  of  his  family  .  .  . 
the  blood  feud  or  vendetta." 

The  Hebrew  law  declared  that  homicide  could  never 
be  a  trespass.  It  was  an  ofi"ense  against  God.  Family 
interests  in  it  were  wiped  out.     Killing  was  not  neces- 

8  The  Hebrew  law  is  familiar  to  everybody  through  the  Old 
Testament.  It  has  seemed  better  to  me  to  condense  a  scholarly 
study  of  the  law  by  a  modern  Jew  than  to  go  into  the  intricacies 
of  documentary  study,  especially  as  the  conclusions  are  so  simple, 
so  obvious  and  so  inwrought  in  our  entire  social  life. 
.(Mayer  Sulzberger,  p.  142  et  passim.) 


82  THE    PUBLIC    CONSCIENCE 

sarily  murder.  It  might  have  been  due  to  casualty, 
to  misadventure,  to  an  unthinking  blow  given  in  hot 
blood.  It  was  then  manslaughter  and  punished  much 
as  now.  Murder  was  murder  and  punished  with  death. 
The  wer-gild  was  abolished. 


CRIMES   AGAINST   THE   PERSON 

To  make  up  the  crime  of  homicide  or  murder  there 
must  be  these  three  concurring  circumstances : 

"  I.  The  party  must  be  killed  (anciently  a  barbarous 
assault  with  an  intent  to  murder,  so  that  the  party 
was  left  for  dead  but  recovered  again,  was  adjudged 
murder). 

11.  The  second  consideration  that  is  common  both 
to  murder  and  manslaughter  is,  who  shall  be  said  a 
person,  the  killing  of  whom  shall  be  said  manslaughter 
or  murder. 

If  a  woman  be  quick  or  great  with  child,  if  she  takes 
or  another  gives  her  any  potion  to  make  an  abortion, 
or  if  a  man  strike  her,  whereby  the  child  within  her  is 
killed,  it  is  not  murder  or  manslaughter  by  the  law  of 
England,  because  it  is  not  yet  in  rerum  natura,  though 
it  be  a  great  crime,  and  by  the  judicial  law  of  Moses 
was  punishable  with  death ;  nor  can  it  legally  be  made 
known  whether  it  were  killed  or  not.  So  it  is,  if  after 
such  a  child  were  born  alive,  and  baptized,  and  after 
die  of  the  stroke  given  to  the  mother,  this  is  not 
homicide. 

If  a  man  kills  an  alien  enemy  within  this  Kingdom, 
yet  it  is  felony,  unless  it  be  in  the  heat  of  war,  and 
in  the  actual  exercise  thereof. 

83 


84  THE    PUBLIC    CONSCIENCE 

III.  The  third  inquiry  is,  who  shall  be  said  a  person 
killing?  If  there  be  an  actual  forcing  of  a  man,  as  if 
A  by  force  take  the  arm  of  B  and  the  weapon  in  his 
hand  and  therewith  stabs  C  whereof  he  dies,  this  is 
murder  in  A  but  B  is  not  guilty.  But  if  there  be  only 
a  moral  force,  as  by  threatening,  duress  or  imprison- 
ment etc.,  this  excuseth  not. 

Rape  is  an  offense  in  having  unlawful  and  carnal 
knowledge  of  a  woman  by  force  and  against  her  will. 

Robbery  is  a  felonious  and  violent  taking  away  from 
the  person  of  another  goods  or  money  to  any  value 
putting  him  in  fear. 

Such  hurt  of  any  part  of  a  man's  body  whereby  he 
is  rendered  less  able,  in  fighting,  either  to  defend  him- 
self or  to  annoy  his  adversary,  is  properly  a  maim. 
.  .  .  An  assault  is  an  attempt,  or  offer,  with  force 
and  violence  to  do  a  corporal  hurt  to  another;  as  by 
striking  at  him  with  or  without  a  weapon ;  or  present- 
ing a  gun  at  him  at  such  a  distance  to  which  the  gun 
will  carry;  or  pointing  a  pitchfork  at  him  standing 
within  reach  of  it;  or  by  holding  up  one's  fist  at  him 
or  by  any  other  such-like  act  done  in  an  angry,  threat- 
ening manner,  from  whence  it  clearly  follows  that  one 
charged  with  an  assault  and  battery  may  be  found 
guilty  of  the  former,  and  yet  acquitted  of  the  latter. 
But  every  battery  includes  an  assault.  .  .  .  No  words 
whatsoever  can  amount  to  an  assault. 

Any  injury  whatever,  be  it  never  so  small,  being 
actually  done  to  the  person  of  a  man  in  an  angry,  re- 
vengeful, rude  or  insolent  manner,  as  by  spitting  in 


ILLEGAL  —  ALWAYS    REPROBATED        85 

his  face,  or  any  way  touching  him  in  anger,  or  violently 
jostling  him  out  of  the  way,  are  batteries  in  the  eye 
of  the  law." ' 


I.  ILLEGAL  — ALWAYS  REPROBATED 

Murder 

COMMONWEALTH  v.  WEBSTER 
Supreme  Judicial  Court  of  Massachusetts,  1850 

(Reported  5  Cush.  296.    Beale,  3d  ed.) 

The  defendant,  professor  of  chemistry  in  the  medical 
college  in  Boston,  attached  to  the  university  at  Cam- 
bridge, was  indicted  in  the  municipal  court  at  the 
January  term,  1850,  for  the  murder  of  Dr.  George 
Parkman,  at  Boston,  on  the  23d  of  November,  1849. 
The  indictment  having  been  transmitted  to  this  court, 
as  required  by  the  Rev.  Sts.  c.  136,  Sec.  20,  the  defend- 
ant was  tried  at  the  present  term,  before  the  Chief 
Justice,  and  Justices   Wilde,  Dewey,  and  Metcalf.^'^ 

The  government  introduced  evidence  that  Dr. 
George  Parkman,  quite  peculiar  in  person  and  manners, 
and  very  well  known  to  most  persons  in  the  city  of 
Boston,  left  his  home  in  Walnut  Street,  in  Boston,  in 
the  forenoon  of  the  23d  of  November,  1849,  in  good 
health  and  spirits;  and  that  he  was  traced  through 
various  streets  of  the  city  until  about  a  quarter  before 

^  Quoted   from    Hale,    "  Pleas    of   the    Crown "   and    Hawkins, 
ditto,  as  cited  by  Beale  in  his  "  Cases  on  Criminal  Law,"  3d  ed. 
^°  Part  of  the  case  is  omitted. 


86  THE    PUBLIC    CONSCIENCE 

two  o'clock  on  that  day,  when  he  was  seen  going  to- 
wards and  about  to  enter  the  medical  college.  That 
he  did  not  return  to  his  home.  That  on  the  next  day 
a  very  active,  particular,  and  extended  search  was 
commenced  in  Boston  and  the  neighboring  towns  and 
cities,  and  continued  until  the  30th  of  November;  and 
that  large  rewards  were  offered  for  information  about 
Dr.  Parkman.  That  on  the  30th  of  November,  cer- 
tain parts  of  a  human  body  were  discovered  in  and 
about  the  defendant's  laboratory  in  the  medical  col- 
lege ;  and  a  great  number  of  fragments  of  human  bones 
and  certain  blocks  of  mineral  teeth  imbedded  in  slag 
and  cinders,  together  with  small  quantities  of  gold, 
which  had  been  melted,  were  found  in  an  assay  furnace 
of  the  laboratory.  That  in  consequence  of  some  of 
these  discoveries  the  defendant  was  arrested  on  the 
evening  of  the  30th  of  November.  That  the  parts 
of  a  body  so  found  resembled  in  every  respect  the 
corresponding  portions  of  the  body  of  Dr.  Parkman, 
and  that  among  them  all  there  were  no  duplicate  parts; 
and  that  they  were  not  the  remains  of  a  body  which 
had  been  dissected.  That  the  artificial  teeth  found  in 
the  furnace  were  made  for  Dr.  Parkman  by  a  dentist 
in  Boston  in  1846,  and  refitted  to  his  mouth  by  the 
same  dentist,  a  fortnight  before  his  disappearance. 
That  the  defendant  was  indebted  to  Dr.  Parkman  on 
certain  notes,  and  was  pressed  by  him  for  payment; 
that  the  defendant  had  said  that  on  the  23d  of  Novem- 
ber, about  nine  o'clock  in  the  morning,  he  left  word 
at  Dr.  Parkman 's  house  that,  if  he  would  come  to  the 


ILLEGAL  —  ALWAYS    REPROBATED        87 

medical  college  at  half-past  one  o'clock  on  that  day, 
he  would  pay  him ;  and  that,  as  he  said,  he  accordingly 
had  an  interview  with  Dr.  Parkman  at  half-past  one 
o'clock  on  that  day,  at  his  laboratory  in  the  medical 
college.  That  the  defendant  then  had  no  means  of 
paying,  and  that  the  notes  were  afterwards  found  in 
his  possession. 

The  opinion  of  the  court  on  the  law  of  the  case  was 
given  in  the  charge  to  the  jury  as  follows: 

Shaw,  C.  J,  Homicide,  of  which  murder  is  the 
highest  and  most  criminal  species,  is  of  various  degrees, 
according  to  circumstances.  The  term,  in  the  largest 
sense,  is  generic,  embracing  every  mode  by  which  the 
life  of  one  man  is  taken  by  the  act  of  another.  Homi- 
cide may  be  lawful  or  unlawful ;  it  is  lawful  when  done 
in  lawful  war  upon  an  enemy  in  battle;  it  is  lawful 
when  done  by  an  officer  in  the  execution  of  justice 
upon  a  criminal,  pursuant  to  a  proper  warrant.  It 
may  also  be  justifiable,  and  of  course  lawful,  in  neces- 
sary self-defence.  But  it  is  not  necessary  to  dwell 
on  these  distinctions ;  it  will  be  sufficient  to  ask  atten- 
tion to  the  two  species  of  criminal  homicide,  familiarly 
known  as  murder  and  manslaughter. 

In  seeking  for  the  sources  of  our  law  upon  this  sub- 
ject, it  is  proper  to  say,  that  whilst  the  statute  law  of 
the  commonwealth  declares  (Rev.  Sts.  c.  125,  Sec.  1) 
that  "  Every  person  who  shall  commit  the  crime  of 
murder  shall  suffer  the  punishment  of  death  for  the 
same,"  yet  it  nowhere  defines  the  crimes  of  murder 
or  manslaughter,  with  all  their  minute  and  carefully- 


88  THE    PUBLIC    CONSCIENCE 

considered  distinctions  and  qualifications.  For  these, 
we  resort  to  that  great  repository  of  rules,  principles, 
and  forms,  the  common  law.  This  we  commonly  desig- 
nate as  the  common  law  of  England ;  but  it  might  now 
be  properly  called  the  common  law  of  Massachusetts. 
It  was  adopted  when  our  ancestors  first  settled  here, 
by  general  consent.  It  was  adopted  and  confirmed 
by  an  early  act  of  the  provincial  government,  and  was 
formally  confirmed  by  the  provision  of  the  constitution 
(c.  6,  art.  6)  declaring  that  all  the  laws  which  had 
theretofore  been  adopted,  used,  and  approved,  in  the 
province  or  state  of  Massachusetts  bay,  and  usually 
practiced  on  in  the  courts  of  law,  should  still  remain 
and  be  in  full  force  until  altered  or  repealed  by  the 
legislature.  So  far,  therefore,  as  the  rules  and  prin- 
ciples of  the  common  law  are  applicable  to  the  adminis- 
tration of  criminal  law,  and  have  not  been  altered  and 
modified  by  acts  of  the  colonial  or  provincial  govern- 
ment, or  by  the  state  legislature,  they  have  the  same 
force  and  effect  as  laws  formally  enacted. 

By  the  existing  law,  as  adopted  and  practiced  on, 
unlawful  homicide  is  distinguished  into  murder  and 
manslaughter. 

Murder,  in  the  sense  in  which  it  is  now  understood, 
is  the  killing  of  any  person  in  the  peace  of  the  common- 
wealth, with  malice  aforethought,  either  express  or  im- 
plied by  law.  Malice,  in  this  definition,  is  used  in  a 
technical  sense,  including  not  only  anger,  hatred,  and 
revenge,  but  every  other  unlawful  and  unjustifiable 
motive.     It  is  not  confined  to  ill-will  towards  one  or 


ILLEGAL  —  ALWAYS    REPROBATED        89 

more  individual  persons,  but  is  intended  to  denote 
an  action  flowing  from  any  wicked  and  corrupt  motive, 
a  thing  done  malo  animo,  where  the  fact  has  been  at- 
tended with  such  circumstances  as  carry  in  them  the 
plain  indications  of  a  heat  regardless  of  social  duty, 
and  fatally  bent  on  mischief.  And  therefore  malice 
is  implied  from  any  deliberate  or  cruel  act  against 
another,  however  sudden. 

Manslaughter  is  the  unlawful  killing  of  another 
without  malice;  and  may  be  either  voluntary,  as  when 
the  act  is  committed  with  a  real  design  and  purpose  to 
kill,  but  through  the  violence  of  sudden  passion,  occa- 
sioned by  some  great  provocation  which,  in  tenderness 
for  the  frailty  of  human  nature,  the  law  considers 
suflBcient  to  palliate  the  criminality  of  the  offence;  or 
involuntary,  as  when  the  death  of  another  is  caused 
by  some  unlawful  act,  not  accompanied  by  any  inten- 
tion to  take  life. 

From  these  two  definitions  it  will  be  at  once  per- 
ceived that  the  characteristic  distinction  between 
murder  and  manslaughter  is  malice,  express  or  implied. 
It  therefore  becomes  necessary  in  every  case  of  homi- 
cide proved,  and  in  order  to  an  intelligent  inquiry  into 
the  legal  character  of  the  act,  to  ascertain  with  some 
precision  the  nature  of  legal  malice,  and  what  evidence 
is  requisite  to  establish  its  existence. 

Upon  this  subject  the  rule,  as  deduced  from  the 
authorities,  is  that  the  implication  of  malice  arises  in 
every  case  of  intentional  homicide;  and,  the  fact  of 
killing  being  first  proved,  all  the  circumstances  of  acci- 


90  THE    PUBLIC    CONSCIENCE 

dent,  necessity,  or  infirmity,  are  to  be  satisfactorily 
established  by  the  party  charged,  unless  they  arise  out 
of  the  evidence  produced  against  him  to  prove  the 
homicide  and  the  circumstances  attending  it.  If  there 
are,  in  fact,  circumstances  of  justification,  excuse,  or 
palliation,  such  proof  will  naturally  indicate  them. 
But  where  the  fact  of  killing  is  proved  by  satisfactory 
evidence,  and  there  are  no  circumstances  disclosed 
tending  to  show'justification  or  excuse,  there  is  nothing 
to  rebut  the  natural  presumption  of  malice.  This  rule 
is  founded  on  the  plain  and  obvious  principle  that  a 
person  must  be  presumed  to  intend  to  do  that  which 
he  voluntarily  and  wilfully  does  in  fact  do,  and  that 
he  must  intend  all  the  natural,  probable,  and  usual 
consequences  of  his  own  acts.  Therefore,  when  one 
person  assails  another  violently  with  a  dangerous 
weapon  likely  to  kill,  and  which  does  in  fact  destroy 
the  life  of  the  party  assailed,  the  natural  presumption 
is  that  he  intended  death  or  other  great  bodily  harm; 
and,  as  there  can  be  no  presumption  of  any  proper  mo- 
tive or  legal  excuse  for  such  a  cruel  act,  the  conse- 
quence follows  that,  in  the  absence  of  all  proof  to  the 
contrary,  there  is  nothing  to  rebut  the  presumption 
of  malice.  On  the  other  hand,  if  death,  though  wil- 
fully intended,  was  inflicted  immediately  after  provo- 
cation given  by  the  deceased,  supposing  that  such 
provocation  consisted  of  a  blow  or  an  assault,  or  other 
provocation  on  his  part,  which  the  law  deems  adequate 
to  excite  sudden  and  angry  passion  and  create  heat  of 
blood,  this  fact  rebuts  the  presumption  of  malice;  but 


ILLEGAL  —  ALWAYS    REPROBATED        91 

still,  the  homicide  being  unlawful,  because  a  man  is 
bound  to  curb  his  passions,  is  criminal,  and  is  man- 
slaughter. 

In  considering  what  is  regarded  as  such  adequate 
provocation,  it  is  a  settled  rule  of  law  that  no  provoca- 
tion by  words  only,  however  opprobrious,  will  mitigate 
an  intentional  homicide  so  as  to  reduce  it  to  man- 
slaughter. Therefore,  if,  upon  provoking  language 
given,  the  party  immediately  revenges  himself  by  the 
use  of  a  dangerous  and  deadly  weapon  likely  to  cause 
death,  such  as  a  pistol  discharged  at  the  person,  a 
heavy  bludgeon,  an  axe,  or  a  knife,  if  death  ensues, 
it  is  a  homicide  not  mitigated  to  manslaughter  by  the 
circumstances,  and  so  is  homicide  by  malice  afore- 
thought within  the  true  definition  of  murder.  It  is 
not  the  less  malice  aforethought,  within  the  meaning 
of  the  law,  because  the  act  is  done  suddenly  after  the 
intention  to  commit  the  homicide  is  formed ;  it  is  suf- 
ficient that  the  malicious  intention  precedes  and 
accompanies  the  act  of  homicide.  It  is  manifest, 
therefore,  that  the  words  "  malice  aforethought,"  in 
the  description  of  murder,  do  not  imply  deliberation, 
or  the  lapse  of  considerable  time  between  the  malicious 
intent  to  take  life  and  the  actual  execution  of  that 
intent,  but  rather  denote  purpose  and  design  in  contra- 
distinction to  accident  and  mischance. 

In  speaking  of  the  use  of  a  dangerous  weapon,  and 
the  mode  of  using  it  upon  the  person  of  another,  I 
have  spoken  of  it  as  indicating  an  intention  to  kill  him, 
or  to  do  him  great  bodily  harm.    The  reason  is  this; 


92  THE    PUBLIC    CONSCIENCE 

Where  a  man,  without  justification  or  excuse,  causes 
the  death  of  another  by  the  intentional  use  of  a  dan- 
gerous weapon  likely  to  destroy  life,  he  is  responsible 
for  the  consequences,  upon  the  principle  already  stated, 
that  he  is  liable  for  the  natural  and  probable  conse- 
quences of  his  act.  Suppose,  therefore,  for  the  purpose 
of  revenge,  one  fires  a  pistol  at  another,  regardless  of 
consequences,  intending  to  kill,  maim,  or  grievously 
wound  him,  as  the  case  may  be,  without  any  definite 
intention  to  take  his  life;  yet,  if  that  is  the  result, 
the  law  attributes  the  same  consequences  to  homicide 
so  committed,  as  if  done  under  an  actual  and  declared 
purpose  to  take  the  life  of  the  party  assailed.  .    .    . 

The  true  nature  of  manslaughter  is  that  it  is  homi- 
cide mitigated  out  of  tenderness  to  the  frailty  of  human 
nature.  Every  man,  when  assailed  with  violence  or 
great  rudeness,  is  inspired  with  a  sudden  impulse  of 
anger,  which  puts  him  upon  resistance  before  time  for 
cool  reflection;  and  if,  during  that  period,  he  attacks 
his  assailant  with  a  weapon  likely  to  endanger  life, 
and  death  ensues,  it  is  regarded  as  done  through  heat 
of  blood,  or  violence  of  anger,  and  not  through  malice, 
or  that  cold-blooded  desire  of  revenge  which  more 
properly  constitutes  the  feeling,  emotion,  or  passion 
of  malice. 

The  same  rule  applies  to  homicide  in  mutual  com- 
bat, which  is  attributed  to  sudden  and  violent  anger 
occasioned  by  the  combat,  and  not  to  malice.  When 
two  meet,  not  intending  to  quarrel,  and  angry  words 
suddenly  arise,  and  a  conflict  springs  up  in  which  blows 


ILLEGAL  —  ALWAYS    REPROBATED        93 

are  given  on  both  sides,  without  much  regard  to  who 
is  the  assailant,  it  is  a  mutual  combat.  And  if  no  un- 
fair advantage  is  taken  in  the  outset,  and  the  occasion 
is  not  sought  for  the  purpose  of  gratifying  malice,  and 
one  seizes  a  weapon  and  strikes  a  deadly  blow,  it  is 
regarded  as  homicide  in  heat  of  blood ;  and  though  not 
excusable,  because  a  man  is  bound  to  control  his  angry 
passions,  yet  it  is  not  the  higher  offence  of  murder. 

Comment.  With  the  question  whether  Webster  committed 
this  crime  we  have  no  concern.  That  was  a  question 
for  the  jury  which  decided,  on  the  evidence,  that  he  had. 
Chief  Justice  Shaw  has  most  clearly  and  exhaustively 
laid  down  the  distinctions  in  homicide.  The  points  for 
our  notice  are: 

1.  Malice  is  necessary  to  murder. 

2.  In  manslaughter,  the  punishment  seems  to  be  an 
attempt  at  the  lex  talionis  — "  to  make  the  punish- 
ment fit  the  crime."  There  being  no  malice  of  the 
kind  above  referred  to,  there  can  be  no  murder.  The 
punishment  for  manslaughter  is,  however,  very  severe. 

3.  Everyone  is  presumed  to  intend  to  do  that  which  he 
actually  does. 

4.  Insults  never  justify  murder  or  manslaughter  before 
the  law.  We  shall  see  that  juries  often  override 
the  law. 

THE   BECKER   CASE 

(Taken  from  Court  Records,  the  daily  press  and  current  magazines.) 

One  Herman  Rosenthal  was  shot  to  death  at  about 
two  A.M.,  July  16th,  1912,  in  one  of  the  most  public 
portions  of  New  York.    He  was  a  gambler  and  law 


94  THE    PUBLIC    CONSCIENCE 

breaker  but  his  murder  aroused  great  public  interest 
and  excitement,  first,  because  of  the  barbarous  defiance 
of  law  displayed  in  the  manner  of  his  killing,  and, 
second,  because  he  was  about  to  appear  before  a  grand 
jury  and  give  evidence  to  establish  improper  relation- 
ship between  members  of  the  police  force  in  said  city 
and  unlawful  resorts,  and  wherefrom  arose  the  possi- 
bility for  suspicion  that  the  police  had  participated 
in  or  encouraged  the  murder. 

On  August  20th,  1912,  Charles  Becker^  a  police  lieu- 
tenant, and  four  professional  law-breakers,  commonly 
known  as  gunmen,  to  wit,  Whitey  Louis,  Dago  Frank, 
Lefty  Louie  and  Gyp  the  Blood,  as  they  were  com- 
monly designated,  as  well  as  Jack  Sullivan  and  Wil- 
liam Shapiro  were  jointly  charged  with  murder  in  the 
first  degree,  as  having  killed  Rosenthal.  All  but  the 
last  two  named  were  subsequently  convicted  and  exe- 
cuted ;  but  not  until  Becker  had  been  twice  tried.  The 
first  appeal  for  a  new  trial  was  granted,  the  second  re- 
fused.   The  others  made  an  appeal  which  was  refused. 

There  is  nothing  peculiar  or  noteworthy  about  the 
case  of  the  four  gunmen  who  committed  the  murder 
in  the  presence  of  a  number  of  witnesses,  though  they 
escaped  in  an  automobile  and  fought  conviction  when 
caught,  denying  their  guilt.  The  interest  of  the  case 
and  its  importance  lies  in  the  following  circumstances. 

There  was  no  suggestion  that  Becker  directly  par- 
ticipated in  the  shooting.  It  was  claimed  that  he  hired 
Rose,  Webber  and  Vallon,  gamblers,  who  in  turn  hired 
the  "  gunmen  "  to  put  Rosenthal  out  of  the  way  in 


ILLEGAL  —  ALWAYS    REPROBATED        95 

order  that  he,  Rosenthal,  might  not  betray  Becker. 
Rose,  Webber  and  Vallon  were  promised  immunity 
from  prosecution  for  murder  if  they  would  testify 
against  Becker,  which  they  did.  They  were  un- 
doubtedly guilty  of  hiring  the  men  who  actually  killed 
Rosenthal.  In  granting  a  new  trial  Justice  Hitchcock 
criticized  severely  the  method  of  Justice  Goff  in  the 
original  trial  and  declared  that  Becker  had  not  had  a 
fair  trial  within  the  meaning  of  the  law,  and  that  not 
in  mere  matters  of  technicality  but  in  essentials. 

The  character  of  the  witnesses  against  Becker  and 
the  fact  that  they  were  to  save  their  own  lives  by  testi- 
fying against  him  aroused  fierce  criticism.  In  the 
second  trial  other  witnesses  were  produced  who  cor- 
roborated the  accomplices.  Chief  Justice  Bartlett  in 
his  opinion  (second  appeal)  said  "  the  public  prose- 
cutor appears  to  have  considered  that  the  community 
would  gain  more  by  the  conviction  of  a  faithless  public 
oflBcer  than  it  would  suffer  by  the  escape  of  three  con- 
fessed murderers  from  any  punishment  for  their  par- 
ticipation in  the  crime.  This  was  a  matter  for  him 
to  determine  under  the  responsibility  of  his  official 
oath." 

Becker  went  to  the  electric  chair  protesting  his  in- 
nocence. His  friends  have  claimed  that  time  would 
vindicate  him  and  show  him  to  have  been  the  victim  of 
a  conspiracy. 

The  gunmen  killed  Rosenthal  simply  as  a  matter  of 
business  for  which  they  were  paid. 

The  case  is  important  for  many  reasons,  —  chiefly 


96  THE    PUBLIC    CONSCIENCE 

because  the  public  was  so  outraged  at  the  thought  that 
its  trusted  ofificers  for  the  prevention  of  crime  were 
themselves  guilty  of  the  worst  of  crimes.  There  was 
little  criticism  of  the  immunity  granted  to  the  three 
accomplice  witnesses  because  it  was  believed  the  price 
was  not  too  high  to  pay. 

While  many  have  questioned  the  guilt  of  Becker  in 
directly  causing  the  death  of  Rosenthal,  there  is  a 
general  feeling  that  he  was  morally  if  not  legally  guilty, 
in  that  he  could  have  prevented  the  crime  had  he 
chosen  to  do  so.  He  was  shown  to  have  grown  rich 
(relatively)  in  a  very  short  time  upon  a  very  small 
salary,  immediately  following  raids  upon  gamoiing 
houses.  But  many  believe  that  the  murder  of  Jack 
Zelig,  after  Rosenthal's,  put  out  of  the  way  one  who 
would  have  been  able  to  testify  about  the  man 
"  higher  up." 

(This  case  is  equally  a  case  under  Security  and 
Liberty.) 

Comment.  The  characteristics  of  murder,  in  the  case  of 
Becker,  were  all  present.  The  act  was  premeditated, 
malicious,  effectual.  The  fact  that  the  deed  was  actually 
committed  by  another  makes  no  difference  whatever, 
since  the  law  has  for  a  long  time  recognized  the  principle, 
qui  facit  per  alium  facit  per  se. 

Rose,  Webber  and  Vallon  were  doubtless  as  guilty 
as  Becker  in  every  respect  save  one,  that  theirs  was  not 
the  initial  malice  which  sought  to  abolish  Rosenthal. 
The  natural  (social)  law  of  New  York  State  that  he 
who  commits  murder  as  defined  by  civilization  and  is 
caught,  will  be  killed,  was  nullified  by  another  law  which 


ILLEGAL  —  ALWAYS    REPROBATED        97 

may  here  be  tentatively  assumed,  that  society  will  do 
anything  which  ministers  to  its  own  preservation.  So- 
ciety is  in  less  danger  from  the  release  of  three  convicted 
murderers,  released  consciously  and  under  observation, 
than  from  one  of  its  now  trusted  servants  who  has  be- 
trayed his  trust.  Any  price  will  be  paid  to  guarantee 
the  trustworthiness  of  our  police  system. 

The  four  gunmen  were  actual  murderers,  dangerous 
and  to  be  abolished  —  but  abolished  more  because  the 
letter  of  the  law  is  so  specific  than  because  society  has 
definitely  come  to  a  conclusion  about  them.  Perhaps 
one  might  make  the  surmise  that  they  are  rather  open 
enemies  of  our  own  group  than  traitors  within  it;  as 
they  show  no  social  conscience  at  all. 

PLEW-WAKEFIELD   CASE 

(Sources:    Court  Records  and  Daily  Papers.) 

William  Wakefield  was  murdered  by  James  Plew  in 
June,  1912,  near  Bristol,  Conn.  His  body  was  found 
two  weeks  later  and  Plew  confessed,  implicating  Mrs. 
Wakefield,  as  they  wished  to  marry  when  they  could 
get  Wakefield  out  of  the  way.  Plew's  case  was  plain 
and  he  was  summarily  convicted  and  hanged. 

Mrs.  Wakefield  was  found  guilty  Nov.  4,  1913,  of 
murder  in  the  first  degree  and  sentenced  to  be  hanged. 
The  Connecticut  statute  made  this  possible.  Under 
the  common  law  she  would  have  been  simply  an  acces- 
sory before  the  fact  and  could  not  have  been  tried  as 
a  principal. 

At  the  time  of  Mrs.  Wakefield's  trial  Plew  had  not 
yet  been  convicted  of   the  crime  although   he  had 


98  THE    PUBLIC    CONSCIENCE 

pleaded  guilty.  It  was  necessary  then  for  the  state 
to  prove  both  his  and  Mrs.  Wakej&eld's  guilt  in  order 
to  convict  her.  She  had  also  to  be  convicted  of  having 
"  procured,  counseled  and  encouraged  "  him  to  do  it. 
Silent  acquiescence  would  not  be  suflBcient.  She  was 
found  guilty  as  stated,  but,  on  appeal,  a  new  trial  was 
granted  on  error.  Meanwhile  a  great  hubbub  arose 
among  those  opposed  to  capital  punishment  and  among 
women's  organizations  to  keep  a  woman  from  being 
hanged. 

On  July  30th  she  was  found  guilty  of  murder  in  the 
second  degree  and  sentenced  to  prison  for  life. 

There  can  be  little  doubt  that  the  second  verdict 
was  influenced  by  popular  clamor  —  a  sentimental 
objection  to  having  a  woman  hanged  being  a  promi- 
nent feature  of  the  protests. 

There  was  quite  as  much  evidence  of  her  instigation 
of  the  crime  as  was  found  in  the  Becker  Case.  She 
had  frequently  made  remarks  which  encouraged  Plew 
to  believe  that  she  wished  to  have  her  husband  killed. 
She  was  not  even  remotely  suspected  of  having  taken 
part,  directly,  in  the  killing. 

Comment.  There  can  be  no  doubt  that  Mrs.  Wakefield 
was  guilty  in  exactly  the  same  way  as  Becker.  She 
would  doubtless  have  been  hanged  but  for  the  fact  that 
she  was  a  woman.  There  are  not  many  women  mur- 
derers and  the  State  has  not  felt  them  as  a  menace. 


ILLEGAL  —  ALWAYS    REPROBATED        99 

OURISH   CASE 

Connecticut,  1786.  —  Anonymous 

Hannah  Ourish,  13  years  old,  killed  a  playmate, 
Eunice  Bolles,  7  years,  by  pounding  her  on  the  head 
with  a  stone.  She  was  given  the  death  penalty  and 
hanged. 

Hannah  was  the  daughter  of  a  colored  man  and  a 
Pequot  squaw.  Her  mother  was  addicted  to  drink  and 
her  home  situation  was  of  the  poorest.  Under  these 
circumstances  she  became  addicted  to  lying,  and  she 
was  often  cruel. 

Her  parents,  to  get  rid  of  her,  bound  her  out  to  a 
widow.  After  Hannah  and  Eunice  went  berry  picking 
one  day,  Eunice  complained  that  Hannah  had  stolen 
some  of  her  berries.  Hannah  was  punished,  and  after 
that  took  every  opportunity  to  torment  Eunice. 

It  appears  that  in  the  trial  little  weight  was  given 
to  the  age  of  the  defendant  and  the  peculiar  conditions 
which  had  surrounded  her  life. 

Comment.  Given  as  an  indication  of  the  attitude  of  a 
former  day.  No  child  so  young  could  be  hanged  under 
law  in  the  United  States  today:  on  the  ground,  declared 
in  statutes,  that  at  such  an  age  full  recognition  of  the 
consequences  of  one's  acts  is  not  possible.  The  surface 
evidence  here,  in  addition,  points  to  the  abnormality  of 
the  girl. 


100  THE    PUBLIC    CONSCIENCE 

REGINA  V.  HOLLAND 
Liverpool  Assizes,  1841 

(Reported  2  Moody  &  Robinson,  351.    Beale  3d  ed.) 

"  The  deceased  had  been  waylaid  and  assaulted  by 
the  prisoner  and,  among  other  wounds,  he  was  severely 
cut  across  one  of  his  fingers  by  an  iron  instrument. 
On  being  brought  to  the  infirmary,  the  surgeon  urged 
him  to  submit  to  the  amputation  of  the  finger,  telling 
him,  unless  it  were  amputated,  he  considered  that  his 
life  would  be  in  great  hazard.  The  deceased  refused 
to  allow  the  finger  to  be  amputated.  It  was  thereupon 
dressed  by  the  surgeon,  and  the  deceased  attended  at 
the  infirmary  from  day  to  day  to  have  his  wounds 
dressed;  at  the  end  of  a  fortnight,  however,  lock-jaw 
came  on,  induced  by  the  wound  on  the  finger;  the 
finger  was  then  amputated  but  too  late,  and  the  lock- 
jaw ultimately  caused  death.  The  surgeon  deposed 
that  if  the  finger  had  been  amputated  m  the  first  in- 
stance, he  thought  it  most  probable  that  the  life  of 
the  deceased  would  have  been  preserved. 

"  For  the  prisoner,  it  was  contended  that  the  cause  of 
death  was  not  the  wound  inflicted  by  the  prisoner, 
but  the  obstinate  refusal  of  the  deceased  to  submit  to 
proper  surgical  treatment,  by  which  the  fatal  result 
would,  according  to  the  evidence,  have  been  prevented. 
Maule,  J.,  however,  was  clearly  of  opinion  that  this 
was  no  defense,  and  told  the  jury  that  if  the  prisoner 
wilfully,  and  without  any  justifiable  cause,  inflicted 


ILLEGAL  —  ALWAYS    REPROBATED      101 

the  wound  on  the  party,  which  wound  was  ultimately 
the  cause  of  death,  the  prisoner  was  guilty  of  murder; 
that  for  this  purpose  it  made  no  difference  whether 
the  wound  was  in  its  own  nature  instantly  mortal,  or 
whether  it  became  the  cause  of  death  by  reason  of  the 
deceased  not  having  adopted  the  best  mode  of  treat- 
ment; the  real  question  is  whether  in  the  end  the 
wound  inflicted  by  the  prisoner  was  the  cause  of 
death."  (Guilty) 

Comment.  There  are  no  degrees  of  murder  in  England. 
It  is  probable  that  the  death  penalty  was  not  inflicted; 
but  doubtless  the  prisoner  received  a  much  more  severe 
punishment  than  he  would  have  received  in  the  United 
States  under  the  same  conditions. 


REX  V.  SMITH 
Old  Bailey  — 1804 

(Reported  1  Russ.  Cr.  &  M.  458.    Beale  2d  ed.) 

"  The  neighborhood  of  Hammersmith  had  been 
alarmed  by  what  was  supposed  to  be  a  ghost;  the 
prisoner  went  out  with  a  loaded  gun  to  take  the  ghost; 
and,  upon  meeting  with  a  person  dressed  in  white, 
immediately  shot  him. 

"  M' Donald,  C.  B.,  Rooke  and  Lawrence,  JJ.,  were 
clear  that  this  was  murder,  as  the  person  who  appeared 
as  a  ghost  was  only  guilty  of  a  misdemeanor;  and  no 
one  might  kill  him  though  he  might  not  otherwise 
be  taken. 


102  THE    PUBLIC    CONSCIENCE 

"  The  jury  however  brought  in  a  verdict  of  man- 
slaughter; but  the  court  said  they  could  not  receive 
that  verdict,  and  told  the  jury  that  if  they  believed 
the  evidence,  they  must  find  the  prisoner  guilty  of 
murder,  and  if  they  did  not  believe  the  evidence  they 
should  acquit  the  prisoner. 

"  The  jury  then  found  the  prisoner  guilty,  and  sen- 
tence was  pronounced,  but  the  prisoner  was  afterwards 
reprieved." 

Conwient.  The  prisoner  was  deUberately  taking  the  law 
into  his  own  hands.  He  was  possibly  terrified,  possibly 
headstrong.  The  case  is  admirably  reported  in  Beale 
and  leaves  no  room  for  comment,  except  the  observation 
that  the  forms  of  law  were  preserved  by  the  judge  in 
refusing  to  allow  a  verdict  contrary  to  the  evidence. 

67  Alabama  157.    Nov.  1897 

A  husband  beat  his  wife  while  she  was  quick  with 
child,  inflicting  injuries  from  which  it  died  shortly 
after  birth.  The  court  held  that,  if  a  woman  be  quick 
with  child  and  be  beaten  by  one  intentionally  and 
knowing  her  to  be  so,  and  the  child,  after  being  born 
alive,  die  because  of  such  beating,  then  the  offense  was 
murder  in  the  second  degree.  The  jury  found  the  de- 
fendant guilty  of  murder  in  the  second  degree. 

There  was  no  evidence  of  express  malice  or  of  an 
intent  to  take  life,  but  malice  was  implied  because 
the  husband  beat  his  wife  unlawfully  and  in  a  manner 
dangerous  to  life.  Implied  malice  is  the  distinguishing 
characteristic  of  murder  in  the  second  degree. 


ILLEGAL  —  ALWAYS    REPROBATED      103 

Comment.  Note  that  if  the  child  had  died  before  birth, 
the  defendant  could  have  been  convicted  of  neither 
murder  nor  manslaughter. 


ALABAMA  v.  PIXLEY 

(Student  report) 

Barr  Pixley  lived  in  a  cabin.  Contemplating  a  trip 
away,  he  fixed  a  gun  near  the  door  so  that  any  one 
entering  the  door  in  the  absence  of  the  owner  would 
receive  the  charge  full  in  the  body.  He  also  removed 
his  valuable  possessions  to  a  nearby  house,  and  left 
the  door  insecurely  locked. 

While  Pixley  was  away,  Nels  Anderson,  in  company 
with  two  other  men  sought  shelter  in  the  cabin.  An- 
derson, being  the  first  to  enter  was  killed  by  the  dis- 
charge of  the  spring-gun. 

The  court  in  finding  Pixley  guilty  of  murder  in  the 
second  degree  said :  A  vindictive  desire  to  take  human 
life  was  evidenced  by  these  facts: 

The  valuable  property  was  removed. 

The  door  was  insecurely  locked. 

The  spring-gun  was  so  arranged  that  the  charge  of 
the  gun  would  kill  anyone  entering  the  door. 

Pixley  was  sentenced  to  life  imprisonment. 

Comment.  The  only  palliation  of  his  offense  was  that  he 
had  not  sought  out  any  particular  person  to  kill.  The 
killing  of  any  person  by  an  act  felonious  in  itself  but 
not  aimed  at  any  particular  person,  will  not  be  punished 
with  death. 


W-k  THE    PUBLIC    CONSCIENCE 

New  York  Times  (?)  Nov.  12,  1914 

Thomas  B.  lived  with  Hudson  W.,  his  step-father, 
and  his  mother  at  Bortins  Landing,  N.  J.  The  step- 
father abused  B.'s  mother,  who  was  blind,  striking 
her  in  the  face.  B.  saw  W.  strike  and  wound  his 
mother.  Crazed  with  anger  he  got  a  shot  gun  but 
could  find  no  cartridges.  He  went  to  a  neighbor's 
house  and  borrowed  some  cartridges  saying  "  I'm  going 
to  kill  a  dog  that  has  just  bitten  my  poor  old  blind 
mother." 

He  then  ran  back,  stepped  in  the  doorway  and  dis- 
charged both  barrels  at  his  step-father,  killing  him 
almost  instantly.  He  was  found  binding  up  his 
mother's  wounds  when  the  police  arrived  and  arrested 
him. 

He  was  sentenced  to  serve  not  less  than  15  nor  more 
than  30  years  at  hard  labor. 

Comment.  There  can  be  no  doubt  that  the  severity  of 
this  sentence  is  due  to  the  element  of  deliberation  in  the 
act.    B.  intended  to  kill. 

Cf.  the  case  of  Robert  W.  17  years  of  age  who  on 
November  15th  of  the  same  year,  killed  his  father  at 
Bristol,  Tenn.  The  elder  W.  had  whipped  two  of  his 
children  and  had  threatened  Mrs.  W.  with  a  revolver. 
The  boy  was  exonerated. 

Here  there  had  been  a  threat  to  kill, —  also  the  case 
occurred  in  Tennessee.  (Source:  Student  report  from 
daily  papers.) 

Cf.  also  the  case  of  Arthur  B.  who  confessed  to  the 
murder  of  his  mother  and  sister,  after  having  first  de- 
clared that  they  had  been  killed  and  that  he  was  hunt- 


ILLEGAL  —  ALWAYS    REPROBATED      105 

ing  for  the  murderers.    The  crime  occurred  at  Maidstone, 
Vermont,  March  9th,  19 IL 

There  was  a  farm  willed  to  B.  by  his  father,  which 
he  declared  had  been  taken  away  from  him  by  his  family. 
Judge  Butler  said  the  most  charitable  view  he  could  take 
of  the  affair  was  that  the  defendant's  mind  had  dwelt 
upon  the  loss  of  property  that  his  father  had  willed  to 
him  and  had  been  excited  and  controlled  by  passion. 
This  condition  was  further  aggravated  by  the  use  of  in- 
toxicating liquor  furnished  by  his  own  brother.  He  was 
declared  guilty  of  murder  in  the  first  degree  and  sen- 
tenced to  life  imprisonment  at  hard  labor  in  Windsor 
jail,  November  15th,  1911.  (Daily  paper  November  15, 
1911.) 

New  Mex.  Code,  1915,  Sec.  1645 

Provides  that  tampering  with  a  locomotive  in  such 
a  manner  as  to  threaten  life  or  cause  its  loss  shall  be 
treated  either  as  an  assault  with  intent  to  commit 
murder  or  else  as  murder. 


Manslaughter 

(Daily  Papers,  Media,  Ills.    Nov.  2,  1914.  — 
Student  report.) 

St.  Lewis  Pinkerton,  a  tax  collector,  was  found 
murdered  after  an  absence  of  several  weeks,  upon  the 
confession  of  George  R.  Marsh,  who  with  Roland  S. 
Pennington  was  suspected  of  the  crime.  Marsh  led 
the  officers  to  the  woods  where  the  body  was  hidden. 
He  had  found  evidence  of  improper  relations  between 


106  THE    PUBLIC    CONSCIENCE 

Pinkerton  and  Marsh's  wife.  He  told  his  suspicions 
to  Pennington.  The  three  men  met  in  a  barn  where 
Pinkerton  was  killed  by  a  black  jack  wielded  by 
Marsh,  Pennington  holding  him.  About  $300  in  money 
which  Pinkerton  had  in  his  pockets  was  taken  by  Pen- 
nington, Marsh  refusing  any  of  the  money,  but  mak- 
ing no  objections  to  Pennington's  taking  it. 

In  view  of  the  fact  that  Marsh  believed  that  there 
were  improper  relations  between  Pinkerton  and  the 
former's  wife,  the  jury  held  that  the  crime  was  com- 
mitted in  the  heat  of  passion  by  him.  Their  verdict 
gave  him  fifteen  years  for  second  degree  manslaughter. 

(Pennington,  however,  having  suggested  the  crime 
and  taken  the  money  was  convicted  of  murder  in  the 
first  degree.    Life  imprisonment.) 

Comment.  An  interesting  case  of  discrimination.  Marsh 
actually  committed  murder.  There  was  evident  premedi- 
tation and  such  malice  as  Justice  Shaw  construed  in  the 
Webster  Case;  but  the  "unwritten  law  "  that  a  man  has 
some  right  to  avenge  the  betrayer  of  his  honor,  influenced 
the  jury. 

Pennington  was  of  the  character  of  the  gunmen  in  the 
Becker  Case.  In  him  it  was  simply  sordid  murder  with 
no  individual  malice  apparent. 

Brooklyn  Daily  Eagle,  December  12,  1913. 

Charles  Christman,  19  years  old,  of  534  Cleveland 
Street,  was  this  afternoon  convicted  of  manslaughter 
in  the  first  degree  by  a  jury  in  the  County  Court,  be- 
fore Judge  Dike.    Christman  was  charged  with  having 


ILLEGAL  —  ALWAYS    REPROBATED      107 

prompted  Daniel  Sullivan,  a  gun  man,  to  shoot  and 
kill  Thomas  Ryan,  of  1432  Boyd  Avenue,  on  August 
16th,  last. 

The  murder  resulted  over  a  quarrel  between  Ryan 
and  Richard  Surdez,  a  chauffeur.  Ryan  won  the  affec- 
tions of  Surdez's  sweetheart,  Fannie  Albers,  of  390 
Crescent  St.,  and  the  jilted  suitor  hired  Christman  to 
"  do  up  "  Ryan.  Christman  got  Sullivan  to  do  the 
shooting.  Sullivan  last  week  pleaded  guilty  to  man- 
slaughter in  the  second  degree.  Christman  will  be 
sentenced  on  Monday.  The  jury  was  out  about  two 
hours. 

Comment.  I  find  no  mention  of  Surdez's  part  in  the  kill- 
ing. It  is  important  to  compare  this  with  the  Becker 
Case.  Christman  would  correspond  to  Rose,  Webber 
and  Vallon  in  the  role  he  played;  Sullivan  to  the  gun- 
men. The  killings  occurred  within  about  a  year  of  one 
another,  in  the  same  municipality.  The  great  difference 
in  the  cases  is  their  importance  to  the  safety  of  the  group. 
The  Christman  case  was  the  result  of  a  private  quarrel, 
vicious  enough  but  not  threatening  the  security  of  the 
city. 

COMMONWEALTH  v.  MINK 
Supreme  Judicial  Court  of  Massachusetts,  1877. 

(123  Mass.  422.    Beale  3d  ed.) 

Charles  Ricker  of  Lowell  was  engaged  to  the  de- 
fendant Mink.  There  was  an  interview  in  her  room 
in  which  he  declared  his  intention  to  break  off  the 


108  THE    PUBLIC    CONSCIENCE 

engagement.  She  declares  that  she  thereupon  went 
to  her  trunk,  took  a  pistol  from  it  and  attempted  to 
kill  herself.  Ricker  struggled  with  her  to  prevent  this 
and  in  the  course  of  the  struggle  was  shot  and  killed. 
The  defendant  was  tried  and,  supposing  her  story  to 
be  true,  the  jury  did  not  find  her  guilty  of  murder 
but  of  manslaughter  on  the  ground,  that,  while  she 
had  not  intended  the  death  of  Ricker,  his  death  was 
brought  about  by  her  while  she  was  trying  to  commit 
a  felony,  namely,  suicide.  "  By  the  common  law  of 
England  suicide  was  considered  a  crime  against  the 
laws  of  God  and  man,  the  lands  and  chattels  of  the 
criminal  were  forfeited  to  the  King,  his  body  had  an 
ignominious  burial  in  the  highway,  and  he  was  deemed 
a  murderer  of  himself  and  a  felon,  felo  de  se." 

But  suicide  in  itself  is  not  now  a  felony,  in  Massa- 
chusetts, and,  in  any  case,  the  offender  is  outside  the 
province  and  reach  of  the  law.  An  attempt  to  commit 
suicide  is  a  misdemeanor.  It  is  a  malum  in  se  not 
merely  malum  prohibitum.  And  "  it  isn't  disputed 
that  any  person  who,  in  doing  or  attempting  to  do  an 
act  which  is  unlawful  and  criminal,  kills  another, 
though  not  intending  his  death,  is  guilty  of  criminal 
homicide,  and,  at  least  of  manslaughter." 

Guilty  of  manslaughter. 

Comment.  It  should  be  noted  that  the  difference  between 
mala  prohibita  and  mala  in  se  is  one  which  has  been 
hekl  by  some  to  be  either  purely  fictitious  or  at  most  one 
of  degree,  and  that  a  point  has  been  strained  here  to  make 
the  offense  the  same  as  a  felony.    The  milder  attitude  of 


ILLEGAL  —  ALWAYS    REPROBATED      109 

the  public  toward  suicides  is  not  here  reflected.  The 
ancient  letter  of  the  law  has  convicted  this  woman  of 
an  offense  which,  according  to  the  evidence,  she  never 
intended. 

REGINA  V.  SALMON 

(14  Cox  C.  C,  494.    Beale,  3d  ed.) 

Three  men  were  tried  for  the  manslaughter  of 
William  Wells,  ten  years  old.  The  prisoners  went  into 
a  field  and  each  fired  a  shot  from  a  rifle  at  a  target. 
One  of  the  shots  killed  the  boy  who  was  at  the  time 
in  a  tree  in  his  father's  garden,  distant  about  four  hun- 
dred yards  from  the  spot  where  the  shot  was  fired. 
The  rifle  was  sighted  for  nine  hundred  and  fifty  yards, 
and  would  probably  be  deadly  at  a  mile.  It  did  not 
appear  which  one  of  the  prisoners  fired  the  fatal  shot. 

The  person  who  fired  the  fatal  shot  was  clearly 
guilty  of  manslaughter  since  if  a  person  does  a  thing 
which  is  dangerous  without  taking  proper  precautions 
against  danger  arising  and  in  the  course  of  his  act 
kills  anyone,  it  is  a  criminal  act.  These  prisoners  were 
commonly  engaged  and  were  commonly  guilty  of 
culpable  negligence  under  the  circumstances;  hence 
were  guilty  of  manslaughter.       Conviction  affirmed. 

Comment.    Notice    that   there    are    no    degrees    of    man- 
slaughter in  England. 

These  men  had  in  no  way  intended  the  death  of  the 
child. 


110  THE    PUBLIC    CONSCIENCE 

Wilful  Neglect 
THE  TRIANGLE  WAIST  COMPANY  CASE 

In  April,  1912,  a  destructive  fire  broke  out  in  the 
Asch  Building,  New  York  City,  occupied  by  the  Tri- 
angle Waist  Company,  employing  large  numbers  of 
girls  and  women  in  crowded  quarters,  filled  with  in- 
flammable materials.  Stairways  were  narrow  and  in- 
sufiicient,  some  of  them  inaccessible  because  doors 
were  found  locked,  and  the  single  fire  escape  ended  in 
a  cul-de-sac.  One  hundred  and  forty-seven  people 
were  killed,  mostly  girls  and  women,  being  either 
burned  to  death  or  killed  when  they  jumped  to  avoid 
the  flames.  The  fire  swept  instantaneously  over  large 
quantities  of  inflammable  materials. 

Harris  and  Blanck  of  the  Triangle  Waist  Company 
were  indicted  for  manslaughter;  the  case  of  two  girls 
especially,  who  were  killed  because  they  could  not  get 
through  a  door  supposed  to  have  been  locked,  being 
made  the  basis  of  the  indictment.  Judge  Crain  said 
"  Because  they  are  charged  with  a  felony,  I  charge  you 
that  before  you  find  these  defendants  guilty  of  man- 
slaughter in  the  first  degree  you  must  find  that  this 
door  was  locked.  If  it  was  locked  and  locked  with  the 
knowledge  of  the  defendants,  you  must  also  find  be- 
yond a  reasonable  doubt  that  such  locking  caused  the 
death  of  Margaret  Schwartz.  If  these  men  were 
charged  with  a  misdemeanor,  I  might  charge  you  that 
they  need  have  no  knowledge  that  the  door  was  locked, 


ILLEGAL  —  ALWAYS    REPROBATED      111 

but  I  think  that  in  this  case,  it  is  proper  for  me  to 
charge  that  they  must  have  had  personal  knowledge  of 
the  fact  that  it  was  locked."  Testimony  was  conflicting 
and  it  was  manifestly  impossible  to  prove  their  guilty 
knowledge.  Consequently,  they  were  acquitted.  No 
one  probably  has  the  slightest  doubt  that  the  defend- 
ants Harris  and  Blanck  were  perfectly  cognizant  of  the 
conditions  of  work  in  their  factory.  Two  years  and 
a  half  after  the  Triangle  fire  they  were  fined  for  having 
an  exit  door  locked  in  another  of  their  factories. 

An  unusually  intelligent  coroner's  jury  had  found 
Harris  and  Blanck  responsible  because  of  culpable 
and  criminal  negligence.  This  is  one  of  the  rare  cases 
in  which  deaths  not  due  directly  to  malice  and  not 
brought  about  by  the  direct  agency  of  any  one,  result 
in  so  much  as  an  indictment  for  manslaughter. 

Sources:  Court  records,  daily  papers  and  current 
magazines. 

Comment.  Judge  Grain's  remark  that  since  defendants 
•  were  charged  with  a  felony  and  not  a  misdemeanor  it 
would  be  necessary  for  the  prosecution  to  prove  "  guilty 
knowledge  "  is  an  indication  of  the  demand  of  the  public 
conscience  that,  in  more  serious  matters,  intent  be  proven. 
It  is  not  sufficient  that  it  should  be  evidently  present; 
it  must  be  demonstrably  present.  The  certainty  required 
is  for  the  security  of  the  group.  If  the  intent  is  estab- 
lished, the  offense  is  inevitably  more  serious. 


112  THE    PUBLIC    CONSCIENCE 

COMMONWEALTH  v.  CAMPBELL 
Supreme  Judicial  Court  of  Massachusetts,  1863. 

(Reported  7  All.  541.    Beale,  p.  350,  2d  ed.) 

A  riot  occurred  near  the  armory  in  Cooper  Street  in 
Boston  which  grew  out  of  the  enforcement  of  a  draft 
of  men  for  the  army.  The  evidence  offered  by  the 
government  tended  to  show  that  the  prisoner  was  there 
participating  in  the  riot,  with  a  large  number  of  other 
persons.  A  military  force  was  called  out  to  suppress 
the  riot  and  was  stationed  in  the  armory.  The  mob 
fired  on  the  soldiers  and  the  soldiers  on  the  mob.  Dur- 
ing this  firing  one  William  Currier  was  killed  and  one 
Campbell  was  indicted  for  his  murder,  but  he  was 
acquitted. 

Bigelow,  C.  J.,  said  that  it  was  clear  that  the  general 
rule  of  law  was  that  a  person  engaged  in  the  commis- 
sion of  an  unlawful  act  was  legally  responsible  for  all 
the  consequences  which  naturally  or  necessarily  flow 
from  it.  Yet  no  person  can  be  held  guilty  of  homicide 
unless  the  act  is  either  actually  or  constructively  his, 
and  it  cannot  be  his  act  in  either  sense  unless  com- 
mitted by  his  own  hand  or  by  some  one  acting  in  con- 
cert with  him  or  in  furtherance  of  a  common  object 
or  purpose.  Certainly  that  cannot  be  said  to  be  an 
act  of  a  party  in  any  just  sense,  or  on  any  sound  legal 
principle  which  is  not  only  not  done  by  him  .  .  .  but 
is  committed  by  a  person  who  is  his  direct  and  immedi- 
ate adversary,  and  who  is,  at  the  moment  when  the 


ILLEGAL  —  ALWAYS    REPROBATED      113 

alleged  criminal  act  is  done,  actually  engaged  in  oppos- 
ing and  resisting  him  and  his  confederates  and  abet- 
tors. .  ,  .  The  jury  will  accordingly  be  instructed 
that,  unless  they  are  satisfied  beyond  a  reasonable 
doubt  that  the  deceased  was  killed  by  means  of  a  gun 
or  other  deadly  weapon  in  the  hands  of  the  prisoner, 
or  of  one  of  the  rioters  with  whom  he  was  associated 
and  acting,  he  is  entitled  to  an  acquittal.  (Opinion 
greatly  condensed  but  given  in  the  Justice's  own 
words.) 

"  The  case  of  the  Philadelphia  rioters,  cited  by  the 
attorney-general  ...  is  obscurely  reported.  If  it  can 
be  supported  at  all  as  a  true  exposition  of  the  law,  it 
can  only  be  upon  the  ground  that  both  parties  or  sides 
had  a  common  object  in  view,  namely,  a  breach  of  the 
peace,  and  that  both  went  by  agreement  or  mutual 
understanding  to  engage  in  an  affray  or  riot.  If  such 
was  the  fact,  then,  as  in  the  case  of  a  duel,  although  to 
accomplish  the  common  purpose  they  took  opposite 
sides,  —  still  they  might  all  well  have  been  deemed  to 
have  confederated  together  in  an  unlawful  enterprise, 
and  thus  to  have  become  responsible,  on  the  principle 
already  stated,  for  a  criminal  act  done  in  pursuance 
of  the  common  design  by  any  one  of  their  confederates, 
with  whichever  side  he  may  have  acted  in  the  affray." 

Comment.  It  was  rather  absurd  to  charge  Campbell  with 
murder  in  any  case;  for  he  could  hardly  have  been  con- 
victed of  murder  had  it  been  certain  that  he  fired  the 
shot,  since  he  plainly  was  not  trying  to  kill  a  particular 
person.    In  the  Salmon  Case  where  all  three  men  were 


114  THE    PUBLIC    CONSCIENCE 

convicted  of  manslaughter  though  it  remained  unknown 
which  of  them  had  accidentally  but  culpably  killed  the 
boy,  they  were  all  engaged  in  an  act  whose  consequences 
they  could  have  foreseen;  and  it  was  definitely  known 
that  one  of  them  had  done  the  killing. 

Of.  Becker  Case. 


SPIES  V.  PEOPLE 

Supreme  Court  of  Illinois,  1887 

(Reported    122    111,    1.     Beale,   p.   432,   3d   ed.) 

On  August  20th,  1886,  in  Chicago,  111.,  a  jury  re- 
turned a  verdict  of  murder  against  August  Spies, 
Michael  Schwab,  Samuel  Fielder,  Albert  R.  Parsons, 
Adolph  Fischer,  George  Engel  and  Louis  Lingg  and 
fixed  death  as  the  penalty.  Oscar  Neebe  was  found 
guilty  of  murder  and  the  penalty  was  fixed  at  fifteen 
years  in  the  penitentiary.  The  case  was  appealed.  A 
part  of  the  opinion  of  Magruder,  J.,  follows: 

"  About  the  first  day  of  May,  1886,  the  workingmen 
of  Chicago  and  of  other  industrial  Centres  in  the 
United  States  were  greatly  excited  upon  the  subject 
of  inducing  their  employers  to  reduce  the  time  during 
which  they  should  be  required  to  labor  on  each  day  to 
eight  hours.  In  the  midst  of  the  excitement  growing 
out  of  this  eight  hour  movement,  as  it  was  called,  a 
meeting  was  held  on  the  evening  of  May  4th,  1886, 
at  the  Haymarket  ...  in  the  West  division  of  the 
City  of  Chicago.    This  meeting  was  addressed  by  the 


ILLEGAL  —  ALWAYS    REPROBATED      115 

defendants,  Spies,  Parsons  and  Fielder.  While  the 
latter  was  making  the  closing  speech,  and  at  some 
point  of  time  between  ten  and  half  past  ten  in  the 
evening,  several  companies  of  policemen,  numbering 
one  hundred  and  eighty  men,  marched  into  the  crowd 
from  their  station  on  Desplaines  Street,  and  ordered 
the  meeting  to  disperse.  As  soon  as  the  order  was 
given,  some  one  threw  among  the  policemen  a  dyna- 
mite bomb  which  struck  Degan,  who  was  one  of  the 
police  officers,  and  killed  him.  As  the  result  of  the 
throwing  of  the  bomb  and  of  the  firing  of  pistol  shots, 
which  immediately  succeeded  the  throwing  of  the 
bomb,  six  policemen,  besides  Degan,  were  killed,  and 
sixty  more  were  seriously  wounded. 

"  It  is  undisputed  that  the  bomb  was  thrown  and 
that  it  caused  the  death  of  Degan.  It  is  conceded  that 
no  one  of  the  convicted  defendants  threw  the  bomb 
with  his  own  hands." 

The  Illinois  statute  abolishes  the  distinction  be- 
tween accessories  before  the  fact  and  principals.  The 
defendants  had  formed  a  common  purpose  to  ac- 
complish murder  by  concerted  action.  "  Where  there 
is  a  conspiracy  to  accomplish  an  unlawful  purpose, 
and  the  means  are  not  specifically  agreed  upon,  or 
understood,  each  conspirator  becomes  responsbile  for 
the  means  used  by  any  co-conspirator  in  the  accom- 
plishment of  the  purpose  in  which  they  are  all  at  the 
time  engaged."  State  v.  McCahill,  72  Iowa,  111.  The 
jury  found  that  the  facts  constituting  a  conspiracy 
were  established.    The  court  of  appeals  sustained  the 


116  THE    PUBLIC    CONSCIENCE 

verdict  of  the  lower  court  and  the  men  were  duly 
executed.  The  final  words  of  Judge  Magruder's  opin- 
ion are  as  follows: 

"  If  the  defendants,  as  a  means  of  bringing  about 
the  social  revolution  and  as  a  part  of  the  larger  con- 
spiracy to  effect  such  a  revolution,  also  conspired  to 
excite  classes  of  workingmen  in  Chicago  into  sedition, 
tumult  and  riot  and  to  the  use  of  deadly  weapons  and 
the  taking  of  human  life,  and  for  the  purpose  of  pro- 
ducing such  tumult,  riot,  and  to  the  use  of  weapons, 
and  taking  of  life,  advised  and  encouraged  such  classes 
by  newspaper  articles  and  speeches  to  murder  the 
authorities  of  the  city,  and  a  murder  of  a  policeman 
resulted  from  such  advice  and  encouragement,  then 
defendants  are  responsible  therefor." 

Comment.  A  case  of  responsibihty  for  any  movement  to 
whose  ends  one  consents.  There  would  have  been  no 
doubt  of  the  guilt  of  the  defendants  except  that  the 
issue  was  clouded  by  a  confusion  with  the  right  of  free 
speech.  For  the  extent  to  which  that  right  actually 
exists  compare  cases  under  that  heading.  The  conclud- 
ing words  of  Judge  Magruder  give  the  formal  opinion 
of  the  court  on  that  subject.  This  is  yet  another  case 
where  those  who  incite  to  murder  are  counted  to  be  as 
guilty  as  if  they  had  done  the  deed  themselves.  With 
reference  to  the  philosophy  of  anarchy  the  case  is  sig- 
nificant. No  social  philosophy  is,  at  this  point,  deemed 
to  be  justified  in  overthrowing  the  society  that  exists; 
at  least,  it  cannot  be  justified  by  the  sworn  officers  of 
that  existing  society. 


SOMETIMES    REPROBATED,    OFTEN    NOT     117 

11.    SOMETIMES  REPROBATED,  OFTEN  NOT 

Accidental 

THE  GENERAL  SLOCUM  CASE 

United  States  v.  Van  Schaick 

(134  Federal  Reporter  592,  159  Federal  Reporter  847,  also 
daily  papers  and  magazines.) 

The  Steamship  General  Slocum,  Captain  Van 
Schaick,  Master,  was  inspected  May  5th,  1904,  and 
given  a  license  in  her  usual  waters  near  New  York  to 
navigate  for  one  year. 

On  June  15th  of  the  same  year,  while  navigating  the 
East  River  with  a  church  excursion  of  between  1000 
and  1100  persons,  largely  women  and  children,  she 
took  fire  and,  the  fire  rapidly  spreading  and  being  quite 
uncontrolled  by  the  crew,  about  1000  persons  lost  their 
lives,  though  none  of  the  crew  was  lost. 

Subsequently,  the  owner  of  the  vessel,  the  Knicker- 
bocker Steamship  Company,  the  master  of  the  vessel, 
and  the  directors  of  the  company  were  all  indicted  for 
manslaughter  and  the  inspector  who  had  examined  the 
vessel  on  May  5th,  the  charges  being  that  the  vessel 
was  unfit  for  service  on  account  of  rotten  life  pre- 
servers, filled  with  cork  dust  and  useless,  lack  of  disci- 
pline on  the  vessel  and  inadequate  fire  prevention 
apparatus.  All  of  these  charges  were  abundantly  sus- 
tained in  detail. 


118  THE    PUBLIC    CONSCIENCE 

Sec.  5344,  Title  70,  Revised  Statutes  of  the  United 
States,  reads,  "  Every  captain,  engineer,  pilot  or  other 
person  employed  on  any  steamboat  or  vessel,  by  whose 
misconduct,  negligence  or  inattention  to  his  duties 
on  such  vessel,  the  life  of  any  person  is  destroyed, 
shall  be  deemed  guilty  of  manslaughter,  and, 
upon  conviction  thereof  before  any  Circuit  Court 
of  the  United  States,  shall  be  sentenced  to  confine- 
ment at  hard  labor  for  a  period  of  not  more  than  10 
years." 

It  was  shown  that  there  had  been  no  fire  drill,  that 
Van  Schaick  was  aware  of  the  inflammable  contents  of 
the  forward  hold  in  which  the  fire  started,  that  he 
knew  the  need  of  many  things  to  make  his  vessel  safe. 
Judge  Thomas,  at  the  first  trial,  said  that  it  was  no 
part  of  a  master's  duty  to  make  an  inspection  of  life 
preservers  and  other  safety  apparatus,  once  made  by 
supposedly  competent  authorities,  but  that  it  was 
his  duty  to  use  ordinary  observation  and  not  to  leave 
port  with  his  vessel  in  an  unsafe  condition. 

The  directors  were  not  named  in  the  statutes  but 
by  common  law  would  be  principals  in  the  second 
degree. 

On  January  27th,  1906,  Captain  Van  Schaick  was 
found  guilty  of  manslaughter  and  sentenced  to  ten 
years  imprisonment  at  hard  labor.  An  appeal  was 
taken  but  conviction  was  afiirmed  and  the  captain  was 
again  sentenced  February  12th,  1908.  He  was  paroled 
from  Sing  Sing  in  August,  1911,  after  serving  a  few 
months  more  than  three  years  of  his  sentence  and 


SOMETIMES  REPROBATED,  OFTEN  NOT  119 

was  pardoned  outright  by  President  Taft  on  Christmas 
Day,  1912,  he  being  then  over  72  years  of  age. 

Lundberg,  the  inspector,  was  tried  twice,  the  jury 
disagreeing  in  both  cases.  I  can  find  no  record  of  a 
third  trial. 

There  was  ample  evidence  to  show  that  the  owners 
and  directors  were  aware  that  new  life  preservers  had 
not  been  furnished  in  from  9  to  13  years,  and  that 
the  fire  prevention  equipment  was  of  a  poor  quality 
and  not  kept  in  working  order.  Captain  Van  Schaick 
when  about  to  leave  for  prison  was  interviewed  regard- 
ing his  knowledge  of  poor  and  inadequate  equipment. 
—  "  It  is  all  very  well,"  he  said,  "  to  talk  of  proper 
equipment,  but  to  put  a  vessel  in  first  class  shape 
costs  a  lot  of  money  and  the  chances  are  that  if  I  had 
ordered  all  the  things  the  Slocum  required  I  would 
have  been  out  of  a  job." 

The  directors  were  also  condemned  but  I  can  find 
no  record  in  newspapers  or  court  reports  of  the  penalty 
imposed.  Apparently  they  never  suffered  any  punish- 
ment from  the  State. 


REGINA  V.  BRADSHAW 

Leicester  Assize  1878 

(Reported  14  Cox,  C.  C.  83.    Beale,  3d  ed.  p.  212.) 

William  Bradshaw  killed  Herbert  Dockerty  in  a 
football  game  at  a  match  held  at  Ashby-de-la-Zouch. 
The  killing  occurred  in  the  course  of  the  game,  by 


120  THE    PUBLIC    CONSCIENCE 

the  prisoner's  "  charging  "  Dockerty  in  a  manner  de- 
scribed variously  as  within  the  rules  of  the  game  and 
not  within  such  rules. 

Bramwell,  L.  J.  "  The  question  for  you  (the  jury) 
to  decide  is  whether  the  death  of  the  deceased  was 
caused  by  the  unlawful  act  of  the  prisoner.  There  is 
no  doubt  that  the  prisoner's  act  caused  the  death, 
and  the  question  is  whether  that  act  was  unlawful. 
No  rules  or  practice  of  any  game  whatever  can  make 
that  lawful  which  is  unlawful  by  the  law  of  the  land. 
.  .  .  Independent  of  the  rules,  if  the  prisoner  intended 
to  cause  serious  hurt  to  the  deceased,  or  if  he  knew 
that,  in  charging  as  he  did  he  might  produce  serious 
injury,  and  was  indifferent  and  reckless  as  to  whether 
he  would  produce  serious  injury  or  not,  then  the  act 
would  be  unlawful."  Verdict,  not  guilty. 

Comment.  There  can  be  no  doubt  that,  had  the  jury 
accepted  the  judge's  charge  at  its  face  value,  they  would 
have  found  the  prisoner  guilty  of  manslaughter;  as 
every  one  knows  that  "  charging  "  or  "  rushing  "  under 
certain  conditions  may  very  well  result  in  death. 

But  popular  opinion  would  never  uphold  such  a  ver- 
dict inasmuch  as  the  element  of  malice  or  enmity 
toward  an  individual  is  —  in  all  probability  —  totally 
lacking;  and  those  who  play  football  accept  all  such 
risks.  Unnecessary  roughness  in  playing  does  fre- 
quently bring  about  the  disqualification  of  players  and 
breaks  up  agreements  between  friendly  rivals;  but  no 
football  players  could  be  found  to  believe  that  there  was 
a  real  criminal  element  involved. 


SOMETIMES    REPROBATED,    OFTEN    NOT    121 

RAILROAD   ACCIDENTS 

Outlook,  100  :  247,  Feb.  3,  1912. 

(Last  week)  several  high  raih'oad  officials  were  killed 
in  a  preventable  accident.  There  was  a  wooden  car  on 
the  rear  of  a  steel  train.  —  Rear  end  collision,  many 
prominent  men  killed.  Five  years  ago  Samuel  Spen- 
cer, President  of  the  Southern  Railway,  was  killed  in 
the  same  manner. 

Block  signals  are  sometimes  overrun  by  engineers. 
The  only  safety  is  in  the  automatic  stop  system  now  in 
successful  operation  on  the  New  York  Subway  system, 
which,  however,  cannot  be  used  on  surface  roads  on 
account  of  snow  and  ice,  etc. 

Scientific  American,  107  :  342,  Oct.  26,  1912. 

The  Westport  wreck  was  preventable;  cross-overs 
could  be  lengthened  and  "  stiffening  discipline  "  is  not 
enough.  We  look  in  vain  for  evidence  that  the  New 
Haven  has  made  any  effort  to  improve  physical  con- 
ditions. With  the  example  of  the  Pennsylvania  and 
New  York  Central,  the  public  asks  — WHY?  The 
Bridgeport  wreck  preceded  Westport  by  fourteen 
months  —  in  that  time  nothing  was  done  to  change 
conditions.  (See  illustration  in  same  number  of  Sci. 
Amer.) 

The  same  article  states  that  while  cross-overs  are 
much  easier  and  of  far  greater  radius  on  the  Pennsyl- 
vania, still  on  the  shorter  cross-overs  where  there  is  a 
speed  limit,  constant  tests  are  made  of  the  actual 


122  THE    PUBLIC    CONSCIENCE 

speed  at  which  engineers  cross,  without  their  knowl- 
edge.   If  they  exceed  the  limit  they  are  punished. 

Railroad  Accidents  Due  to  Poor  Quality  of  Rails. 

Nation,  94  :  279,  Mar.  21,  1912. 

Rail  makers  contend  that  present  day  traffic  is  too 
heavy  for  a  rail  which  used  to  serve  all  ordinary  pur- 
poses. Some  railway  men  allege  that  the  quality  of 
rails  turned  out  today  is  deteriorating,  but  in  the  re- 
cent wreck  on  the  N.  Y.  Central  (week  before)  it  was 
a  112-lb.  rail,  the  heaviest  now  laid  down  that  was 
broken. 

The  Vice-President  of  the  Great  Northern  Railway 
made  a  statement  that  the  68-lb.  rails  laid  down  twelve 
or  thirteen  years  before  were  giving  better  service  than 
the  90-lb.  rails  laid  down  within  three  years.  And  the 
Railway  Age  Gazette  sharply  criticizes  the  Steel  Cor- 
poration for  making  poor  rails.  They  could  not  be 
brought  up  to  specification  because  of  monopoly  con- 
ditions. 

Opposition  to  Safety  Through  Automatic  Devices 

ON  Railroads  from  Operators  in  the  Interest 

of  Their  Caste. 

Am.  Rev.  of  Rev.,  47  :  334. 

The  questions  are  brought  up.  (1)  Are  such  de- 
vices in  the  interest  of  good  railroading  and  will  they 
not  tend  to  weaken  the  skill  and  responsibility  of  the 
engineer,  who  today  is  one  of  the  most  respected  and 
efficient  of  railway  employes?    (2)  Will  not  his  status, 


SOMETIMES  REPROBATED,  OFTEN  NOT  123 

and  incidentally  his  salary  be  reduced  towards  the 
level  of  the  subway  and  elevated  engineer,  or  motor- 
man,  who,  as  a  cynical  manager  remarked  with  a  de- 
gree of  exaggeration  at  the  time  of  a  strike,  could  be 
reproduced  with  some  two  hours  of  training?  (3)  If  an 
engineer  is  going  to  disregard  signals,  is  he  competent 
to  handle  a  train  with  its  many  lives,  and  if  he  is  con- 
stantly checked  up  automatically  will  he  develop  the 
skill,  keenness,  and  self-reliance  necessary  to  his  work? 
The  operating  men  of  the  railways  are  by  no  means 
a  unit  in  favor  of  automatic  train  stops  and  emergency 
brakes,  nor  are  such  individuals  as  Mr.  J.  0.  Fagan,  the 
author  of  the  "  Confessions  of  a  Signalman,"  and  many 
of  the  representatives  of  the  Brotherhood  of  Locomo- 
tive Engineers,  who  see  in  their  introduction  the  open- 
ing wedge  toward  the  automatic  operation  of  trains 
and  a  system  of  central  control. 

Labor  unions  are  blamed  for  retaining  incompetent 
and  mediocre  men.  But  the  unions  claim  that  they 
have  greatly  improved  the  standard  of  the  individual 
workman  both  in  intelligence  and  sobriety,  and  that 
they  have  protected  competent  men  who  incurred  the 
dislike  of  autocratic  managers. 

Railway   Accidents 

Rev.  of  Rev.,  47  :  327.    Article  by  Herbert  T.  Wade 
(1913) 
During  24  years  for  which  statistics  are  available, 
188,037  persons  have  been  killed, 
1,395,618      "  "       "      injured  on  railroads 

in  the  United  States. 


124  THE    PUBLIC    CONSCIENCE 

During  year  ending  June  30th,  1912, 
10,585  persons  killed 
169,538        "        injured. 
More  than  half  the  killed  were  trespassers  (53%). 

Many  of  these  accidents  are  due  to  the  temperament 
and  habits  of  the  American  people.  Though  many 
millions  have  been  spent  recently  on  track  elevation 
and  other  protective  devices,  the  percentage  of  losses 
remains  about  the  same.  An  indication  of  one  cause 
lies  in  the  fact  that  on  the  Chicago  Elevated  Roads 
(which  alone  have  spent  $70,000,000  recently)  tres- 
passing continues;  and  out  of  339  arrested  for  this 
in  a  three  months  period  but  67  were  punished. 

It  is  safe  to  add  that  their  punishment  was  probably 
light. 

In  1902  there  were  78  accidents  due  to  broken  rails, 
in  1912,  363. 

Rev.  of  Rev.,  47  :  335. 

From  1893-1911  there  was  a  reduction  from  11,710 
to  3175  in  the  total  of  deaths  and  injuries  in  coupling 
accidents  with  vastly  greater  tonnage  carried  by  the 
railways.  This  was  due  chiefly  to  inspection  and  prose- 
cution carried  on  by  the  Interstate  Commerce  Com- 
mission. 

Stamford   Wreck 

Sci.  Am.,  109  :  46,  July  19,  1913. 

This  was  due  to  the  inexperience  of  the  engineer. 
It  was  broad  daylight,  signals  were  set  and  the  engi- 


SOMETIMES    REPROBATED,    OFTEN    NOT     125 

neer  was  doing  his  best  —  but  he  was  inexperienced. 
The  Pennsylvania  Railroad  said  that,  on  their  road,  in 
case  it  was  necessary  to  send  an  inexperienced  man, 
a  traveling  engineer,  or  road  foreman  would  have  been 
sent  with  him. 

This  was  the  first  run  of  a  new  man  with  an  impor- 
tant train,  totally  unsupervised. 

Also  expert  testimony  declared  the  train  to  have 
been  in  unfit  condition  to  leave  the  yards.  There  is  no 
way,  on  the  New  Haven,  of  finding  out  whether  repairs 
to  locomotives  have  actually  been  made. 

List  of  New  Haven  accidents 

Fairfield,  Conn.  June    8,1911,   4  Killed, 

Bridgeport,  Conn.  July  12, 1911, 12      "       54  Injured 

Middletown,  Conn.     Aug.  28,    "       60 

Berlin  Jc,  Conn.  Oct.  15,    "       2      "         5 

Clinton,  Mass.  June  11, 1912,  8 

Stonington  Jc,  Conn.  July  25    "       3      "         4 

Dorchester,  Mass.  Aug.    8,     "       5      "        16 

So.  Boston,  Mass.  "       9,    "        7      "       40 

Westport,  Conn.  Oct.     3,     "       7      "        15 

Greens  Farms,  Conn.    Nov.  16,    "       17 

Putnam,  Conn.  "      17,     "        1       "         2 

Willimantic,  Conn.        "     30,    " 5 

Waterbury,  Conn.        Feb.  12, 1913,  15 

Stamford,  Conn.  June  12,    "      6      "       22 

Wallingford,  Conn.  Sept.     6,  (?)  1913,  21  Killed 

At  the  Westport  wreck  four  women  passengers  were 
burned  to  death —  wooden  Pullman.    Within  a  few 


126  THE    PUBLIC    CONSCIENCE 

hours  the  wrecked  car  was  taken  away  and  burned.    No 
one  was  held  cruninally  Hable. 

Trespassers  Killed 

During  twenty  years  (1912  end) 
86,733  trespassers  killed, 
94,646  "  injured     on     rail- 

ways,   75%    of   them    not   tramps    but   ordinary   wage 
earners,  and  many  women  and  children. 

General  Comment  on  Railroad  and  Steamship 
Wreck  and  Similar  Cases 

In  the  great  majority  of  cases  under  this  heading  it  is 
extremely  difficult  to  fix  responsibility.  The  engineers 
and  firemen  of  colliding  railway  trains  are,  more  than 
half  the  time,  killed ;  and  can  receive  no  punishment  from 
society.  The  captain  of  a  steamship  frequently  goes 
down  with  his  ship.  In  cases  of  pure  accident,  due  to  no 
negligence,  criminal  or  other,  it  is  not  surprising  that 
there  is  no  public  disapproval  expressed.  Sometimes  a 
manslaughter  charge  is  made,  seldom  pressed,  still  more 
seldom  carried  through. 

In  America,  at  least,  passengers  on  railways,  steam- 
ship lines,  trolley  lines,  etc.,  seem  to  be  expected  to  take 
a  sporting  chance  of  survival.  The  captain  of  the  Gen- 
eral Slocum  was  found  guilty  of  manslaughter  and  served 
a  prison  term  (see  case  above) ;  but  he  was  plainly  a 
scapegoat;  and  he  was  pardoned  after  serving  a  short 
sentence.  There  has  never  been  any  trial  of  the  "  man 
higher  up  "  responsible  for  the  frequency  of  fatal  acci- 
dents. Various  individuals  and  newspapers  from  time  to 
time  declare  that  these  are  guilty  of  murder  in  running 
the  kind  of  trains  they  do,  with  such  equipment;  they 
also  protest  against  the  violations  of  fire  ordinances  and 


SOMETIMES  REPROBATED,  OFTEN  NOT  127 

the  laws  for  safety  appliances  on  steamships,  in  theaters 
and  under  similar  conditions.  Civil  damages  for  injury- 
are  fairly  easily  recovered  by  the  survivor  or  by  the  heirs 
of  a  person  killed;  but  there  seems  to  be  little  or  no 
criminal  responsibility. 

The  reasons  for  this  may  be  many.  For  one  thing  the 
practice  of  the  common  law  is  plainly  against  holding 
men  responsible  except  in  the  degree  in  which  they  in- 
tend harm ;  and  no  one  believes  that  either  train  crews  or 
directors  desire  to  murder  the  passengers.  Riding  on 
trains  and  steamships,  in  elevators  and  trolley  cars,  is 
taken  to  be  a  sportsman's  risk  so  far  as  criminality  is 
concerned. 

Another  element  in  these  decisions  is  the  unwillingness 
of  the  public  to  suffer  delay  of  business.  If  safety  de- 
mands fewer  trains  or  more  elaborate  precautions  which 
would  delay  traffic,  the  public  would  apparently  prefer 
risk  to  delay.  The  same  thing  may  be  said  of  crowded 
cars  or  flimsy  building  construction  which  can  be  had  at 
a  reasonable  cost.  Even  where  the  still  inadequate  laws 
for  safety  are  plainly  violated,  while  there  will  be  civil 
damages  assessed,  criminal  responsibility  is  not  imposed. 


WILLY  V.  MULLEDY 
78  New  York,  310—1879 

(Smith  89) 

A  fire  took  place  in  an  apartment  house  in  Brooklyn 
wherein  the  wife  and  child  of  the  plaintiff  were  killed. 
There  were  no  fire  escapes  and  there  was  no  ladder 
giving  access  to  the  scuttle  in  the  roof. 

The  statutes  provided,'  that  both  such  means  of 


128  THE    PUBLIC    CONSCIENCE 

escape  should  be  furnished  and  the  court  held  that  the 
defendant  was  guilty  —  but  damages  alone  were  sought 
and  obtained.    There  was  no  criminal  prosecution. 

The  statute  was  mandatory.  The  defendant  could 
not  wait  until  notified  to  provide  fire  escapes.  An 
absolute  duty  was  imposed  for  the  sole  benefit  of 
tenants.  "  It  is  a  general  rule  that,  whenever  one 
owes  another  a  duty,  whether  such  duty  be  imposed 
by  voluntary  contract  or  by  statute,  a  breach  of  such 
duty  causing  damage  gives  a  cause  of  action.  Duty 
and  right  are  correlative ;  and  where  a  duty  is  imposed, 
there  must  be  a  right  to  have  it  performed." 


Self-Defense 

PEOPLE  V.  TOMLINS 

213  New  York,  240. 

Newton  Tomhns  shot  and  killed  his  son,  a  young 
man  of  twenty-two  on  August  26th,  1913,  at  Stony 
Point  (N.  Y.  ?).  The  father  claimed  that  "he  acted 
without  premeditation  when  blinded  by  passion  be- 
cause of  blows  and  insults  and  that  he  had  acted  justi- 
fiably in  lawful  self-defense  in  his  own  house."  He 
was  judged  guilty  of  murder  in  the  first  degree.  The 
judge  who  renders  the  opinion  on  appeal  says  that 
this  verdict  is  based  upon  ample  evidence.  Neverthe- 
less judgment  of  conviction  was  reversed  and  a  new 
trial  ordered  upon  the  ground  that  the  father  was  in 
his  own  home,  that  he  was  not  bound,  as  in  other  cases 


SOMETIMES  REPROBATED,  OFTEN  NOT  129 

of  self-defense,  to  escape  and  take  refuge  somewhere. 
His  natural  place  of  refuge  was  where  he  then  was  in 
his  own  home. 


THROWING  PERSONS  OVERBOARD  TO  LIGHTEN 
LEAKY  BOAT 

UNITED  STATES  v.  HOLMES 

(1  Wall.  p.  1.    From  "  Milburn's  Curious  Cases,"  pp.  382  ff.  1842.) 

The  American  ship  William  Brown  was  wrecked  on 
an  iceberg  two  hundred  and  fifty  miles  S.  E.  of  Cape 
Race  on  the  19th  of  April,  1841.  On  the  following 
morning  two  boats  put  off  from  the  ship  containing  all 
of  the  crew  and  thirty-three  passengers.  Thirty-one 
passengers  perished  on  the  ship  itself.  The  long  boat 
contained  the  first  mate,  eight  seamen,  of  whom  the 
prisoner  was  one,  and  thirty-two  passengers.  Holmes, 
an  admirable  seaman,  had  behaved  with  great  gallantry 
at  the  time  of  the  wreck.  The  long  boat  was  danger- 
ously overloaded  and  leaky.  By  hard  work,  in  a  quiet 
sea,  the  boat  was  kept  afloat  for  two  days.  Then  the 
sea  rose  and  rain  fell  heavily.  The  danger  became  ex- 
treme and  Holmes,  under  the  orders  of  the  mate,  who 
had  had  similar  orders  from  the  captain  before  leaving 
the  ship,  cast  overboard  fourteen  persons,  all  the  male 
passengers,  with  the  exception  of  two  married  men  and 
a  small  boy.    No  one  of  the  crew  was  cast  over. 

The  mate  directed  the  crew  "  not  to  part  man  and 
wife  and  not  to  throw  over  any  women."    There  was 


130  THE    PUBLIC    CONSCIENCE 

no  other  principle  of  selection.  There  was  no  evidence 
of  combination  among  the  crew.  No  lots  were  cast; 
nor  had  the  passengers,  at  any  time,  been  either  in- 
formed or  consulted  as  to  what  was  now  done. 

The  boat  was  picked  up  shortly  after  and  the  re- 
mainder of  the  company  rescued.  Holmes  was  tried 
for  manslaughter.  His  admirable  character  was  testi- 
fied to  without  dissent  and  it  was  recognized  that  he 
had  been  a  most  valuable  man  in  the  preservation  of 
boat  and  boat's  company.  It  was  he  who  discovered 
the  rescuing  vessel  and  signaled  to  it. 

At  the  trial  much  weight  was  placed  upon  his  neces- 
sary obedience  to  the  orders  of  the  mate  (who,  for  some 
reason,  appears  not  to  have  been  tried).  It  was  recog- 
nized by  all  that  the  emergency  was  desperate  and 
that,  at  the  time  when  danger  threatened  and  the 
fourteen  were  cast  overboard,  it  was  night  and  stormy. 

The  law  of  necessity  was  not  held  to  apply  to  make 
this  a  case  of  justifiable  homicide.  The  sailor  is  held 
to  "  owe  more  benevolence  to  another  than  to  him- 
self." Doubtless  there  would  have  been  an  acquittal 
had  lots  been  cast  to  include  the  crew. 

As  it  was  the  jury  declared  him  guilty,  with  a  recom- 
mendation to  mercy;  and  the  judge  with  all  humanity 
and  evident  reluctance,  pronounced  the  very  light  sen- 
tence of  six  months'  imprisonment  and  twenty  dollars 
fine;  which  penalty  was  subsequently  remitted. 


SOMETIMES    REPROBATED,    OFTEN    NOT     131 


GENERAL  COMMENT  ON  SUICIDE 

Obviously  the  State  cannot  punish  a  successful  suicide ; 
but  attempted  suicide  is  a  crime  throughout  the  entire 
Western  world.  Under  certain  conditions  in  Japan  it  is 
considered  heroically  virtuous;  but  the  laws  of  practi- 
cally all  occidental  states  punish  the  attempt  with  heavy 
penalties  —  nominally.  Actually,  very  little  attention  is 
paid  to  it.  Both  its  punishment  in  our  own  civilization 
and  its  praise  in  certain  parts  of  the  Orient  seem  to  be 
connected  with  religious  ideas,  although  one  may  sur- 
mise that  there  is  a  scarcely  conscious  feeling  that  the 
life  of  the  individual  belongs  to  the  state  and  that  he 
may  not  take  it  without  the  sanction  of  the  state. 

The  attitude  of  insurance  companies  toward  suicide 
has  changed  of  recent  years.  The  fact  that  most  policies 
are  valid  even  in  case  of  death  by  suicide,  after  they 
have  been  in  force  for  one  year,  points,  I  think,  to  a  cer- 
tain confidence  that  the  great  majority  of  cases  of  sui- 
cide are  due  to  a  disordered  mind  and  that  the  small 
residue  of  cases  is  negligible,  rather  than  to  any  modern 
approval  of  self-killing ;  though  there  is  evident  a  distinct 
lightening  of  the  social  disapproval. 

The  old  custom  of  burying  the  suicide  at  a  cross  roads 
with  a  stake  driven  through  his  heart  never  prevailed  in 
this  country  and  there  is  no  bill  of  attainder  or  forfeiture 
of  goods  permitted  under  our  Constitution. 


132  THE    PUBLIC    CONSCIENCE 

Assault  and  Battery 

A  few  assault  cases  are  given  as  throwing  light  on 
the  general  nature  of  killing. 

COMMONWEALTH  v.  WHITE 

(Massachusetts  1872) 

The  defendant  was  driving  a  wagon  along  a  highway 
which  Harrington,  one  Sullivan  and  others  were  re- 
pairing; that  Sullivan  called  out  to  the  defendant  to 
drive  in  the  middle  of  the  road;  that  the  defendant 
made  an  offensive  reply ;  that  thereupon  Sullivan  came 
toward  the  defendant  and  asked  him  what  he  meant; 
that  Sullivan  and  Harrington  were  about  fifteen  feet 
from  the  defendant,  who  was  moving  along  all  the 
time;  that  the  defendant  took  up  a  double-barrel  gun 
which  he  had  in  the  wagon,  pointed  it  towards  Sullivan 
and  Harrmgton,  took  aim  at  them,  and  said,  "  I  have 
got  something  here  that  will  pick  the  eyes  of  you." 
This  was  all  the  evidence.  Sullivan  testified  that  he 
had  no  fear;  but  it  was  evident  that  Harrington  was 
in  fear.  The  defendant  testified  that  the  gun  was  not 
loaded. 

The  judge  ruled  that  it  was  not  necessary  to  prove  a 
threat  to  shoot. 

The  defendant  asked  the  judge  to  instruct  the  jury 
that  the  facts  testified  to  did  not  constitute  an  assault. 

The  instructions  required  the  jury  to  find  that  the 
acts  were  done  "  menacingly." 


SOMETIMES  REPROBATED,  OFTEN  NOT  133 

It  is  not  the  secret  intent  of  the  assaulting  party 
nor  the  undisclosed  fact  of  his  ability  or  inability  to 
commit  a  battery  that  is  material.  It  is  the  outward 
demonstration  that  constitutes  the  mischief  which  is 
punished  as  a  breach  of  the  peace. 

Defendant  found  guilty.  Exact  punishment  not 
stated. 

REGINA  V.  DADSON 
Crown  Case  Reserved,  1850 

(Reported  4  Cox  C.  C.  358.    Beale,  p.  502.) 

George  Dadson  was  a  constable  employed  to  guard 
a  copse.  He  saw  William  Waters  coming  from  the 
copse  carrying  wood  which  he  was  stealing  and  called 
on  him  to  stop.  He  would  not  stop  but  ran.  Dadson 
fired  and  wounded  him  in  the  leg.  Waters  had  him 
tried  and  convicted  on  a  criminal  assault  charge.  The 
case  was  appealed  or  referred. 

Pollock,  C.  B.  said,  "  We  are  all  of  opinion  that  the 
conviction  is  right.  The  prosecutor  not  having  com- 
mitted a  felony  known  to  the  prisoner  at  the  time 
when  he  fired,  the  latter  was  not  justified  in  firing  at 
the  prosecutor;  and  having  no  justifiable  cause,  he  was 
guilty  of  shooting  at  the  prosecutor  with  intent  to  do 
him  grievous  bodily  harm,  and  the  conviction  is 
right." ' 

-    1  Cf.  with  Foster  C.  L.  267  above. 

Cf.  also  cases  of  strikers  killed  by  special  constables  in  Colorado, 
at  Roosevelt,  N.  J.  and  other  places. 


134  THE    PUBLIC    CONSCIENCE 

Assault  —  Self-Defense 

ANONYMOUS 

Common  Pleas,  Easter  Term,  1455. 

(Year  Book,  33  Henry  VI,  folio  18,  placitum  10,  Ames  106.) 

Prisot,  C.  J.  This  is  no  plea  to  the  threats,  without 
more;  for  if  one  assaults  you  to  beat  you,  it  is  not 
lawful  for  you  to  say  that  you  will  kill  him,  and  to 
threaten  his  life  or  limb;  but  if  the  case  is  one  where 
he  has  you  at  such  an  advantage  that  by  intendment 
he  would  kill  you,  as  if  you  should  flee  from  him,  and 
he,  being  swifter  than  you,  should  pursue  you  so  that 
you  could  not  escape;  or,  again  if  you  are  under  him 
on  the  ground;  or  if  he  has  chased  you  to  a  wall,  or 
hedge,  or  dike,  so  that  you  cannot  escape  him,  .  .  . 
then  it  is  lawful  for  you  to  say  that  if  he  will  not  de- 
part from  you,  you,  to  save  your  life,  will  kill  him,  and 
so  you  may  threaten  him  for  such  special  cause. 

By  the  Penal  Law  of  Neiv  York,  Art.  20,  Sec.  246, 
the  use  of  force  is  not  unlawful  when  necessarily  com- 
mitted by  a  public  oJBficer  in  the  performance  of  a  legal 
duty,  or  by  any  person  assisting  him,  etc.;  in  self- 
defense  or  defense  of  another  whose  person  or  property 
is  assailed,  providing  the  defense  is  not  excessive;  or 
by  parents  and  their  agents  for  correction  of  children ; 
or  by  carriers  of  passengers  and  their  agents  in  ejecting 
offenders,  the  vehicles  first  having  been  stopped  and 
no  undue  force  having  been  used;  or  by  the  proper 
restraint  of  insane  persons,  idiots,  etc. 


SOMETIMES    REPROBATED,    OFTEN    NOT     135 

COMMONWEALTH  v.  ADAMS 
Supreme  Judicial  Court  of  Massachusetts,  1873. 

(Reported  114  Mass.  323.    Beale  291,  3d  ed.) 

The  defendant  was  driving  in  a  sleigh  down  Beacon 
Street  and  was  approaching  the  intersection  of  Charles 
Street,  when  a  team  occupied  the  crossing.  The  de- 
fendani  endeavored  to  pass  the  team  while  driving  at 
a  rate  prohibited  by  an  ordinance  of  the  City  of  Boston. 
In  so  doing  he  ran  against  and  knocked  down  a  boy 
who  was  crossing  Beacon  Street.  No  special  intent 
on  the  part  of  the  defendant  to  injure  the  boy  was 
shown.  The  defendant  had  pleaded  guilty  to  a  com- 
plaint for  fast  driving,  in  violation  of  the  city  ordi- 
nance. 

He  was  held  guilty  by  the  trial  court  on  the  ground 
that  intent  to  violate  the  city  ordinance  supplied  the 
intent  necessary  to  sustain  the  charge  of  assault  and 
battery ;  but  the  Supreme  Court  reversed  this  decision 
and  ordered  a  new  trial  on  the  ground  that  the  defend- 
ant was  merely  doing  a  prohibited  act  —  not  an  act 
evil  in  itself.  It  was  not  necessary  to  prove  evil  in- 
tent in  violating  the  city  ordinance.  Violation  in  it- 
self is  sufficient  and  he  can  be  punished  for  that  —  but 
the  violation  of  an  ordinance  is  not  necessarily  either 
a  felony  or  anything  resembling  it.  Therefore  a  mis- 
adventure resulting  from  this  violation  does  not  make 
one  liable  to  punishment  for  assault. 

Cf.  also  State  v.  Horton  (Beale  293,  3d  ed.)  where 


136  THE    PUBLIC    CONSCIENCE 

a  man  who  had  been  hunting  mistook  another  for  a 
wild  turkey  and  killed  him.  He  had  violated  a  local 
ordinance  of  the  legislature  in  so  hunting  on  another 
man's  land  but  had  not  been  hunting  carelessly  nor 
was  hunting  forbidden  at  that  season  of  the  year.  He 
was  adjudged  guilty  of  manslaughter  by  the  trial  court 
but  given  the  very  light  punishment  of  four  months  in 
the  county  jail.  On  appeal  to  the  Supreme  Court  he 
was  declared  innocent  on  the  ground  that  the  act  he 
had  committed  was  merely  a  prohibited  act  and  in- 
dicated no  felonious  intent. 


STATE  V.  WM.  BECK  and  Others 

So.  Carolina,  1833 

(1  Hill  L.  363.     "  Milburn's  Curious  Cases,"  p.  294.) 

One  of  the  defendants  had  lost  leather,  and  sus- 
pecting it  was  stolen,  got  Beck  and  other  defendants 
to  aid  him  in  the  search.  They  found  the  leather  on 
the  premises  of  Noble  Anderson,  and  immediately  took 
him  into  custody,  whether  under  a  warrant  or  not  did 
not  appear.  Whilst  in  this  state,  some  one,  not  Beck, 
asked  Anderson  if  he  would  not  rather  be  whipped 
than  go  to  jail.  He  replied  that  he  would  and  then 
requested  Beck  to  whip  him.  Beck  at  first  hesitated, 
but  finally,  at  the  earnest  entreaty  of  Anderson,  and 
saying,  "  If  it  will  obhge  you,  I  will  do  it,"  consented; 
and  Anderson  putting  his  arms  around  a  tree,  he  gave 
him  a  few  stripes  with  a  switch.    Anderson  was  then 


SOMETIMES  REPROBATED,  OFTEN  NOT  137 

released,   but  was  afterwards  prosecuted,   convicted 
and  punished  for  stealing  the  leather. 

Thereupon  the  defendants  were  charged  with  assault 
and  battery  and  the  presiding  judge  declared  Beck 
clearly  guilty.  He  moved  for  a  new  trial.  The  Court 
of  Appeals  reversed  the  decision  of  the  lower  court. 
A  battery  is  generally  defined  as  injury  done  to  the 
person  of  another  in  a  rude,  insolent  or  revengeful 
way.  Negligence  may  also  give  ground  for  such  a 
charge.  But  where  there  is  no  intention  to  injure  and 
no  negligence,  no  offense  may  be  imputed.  However 
ill  judged  the  act  may  have  been,  it  did  not  constitute 
an  assault  and  battery. 

Military   Discipline 

New  York  Times,  July  23,  1916. 

Private  Henry  Scheiner  was  charged  with  an  attempt 
to  escape  from  the  guard-house  and  an  assault  on  Cor- 
poral Zenger  while  serving  with  Battery  D,  First 
Field  Artillery,  on  the  Mexican  border  during  our 
trouble  with  Mexico. 

It  was  alleged  that  Scheiner  had  thrown  Zenger  to 
the  ground  and  taken  his  pistol  and  had  bitten  the 
hand  of  Private  Segrist  when  the  guard  tried  to  re- 
strain him. 

He  was  found  guilty  by  a  military  court  and  sen- 
tenced to  dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  a  term  of  one  year  at  hard  labor 
in  the  Federal  Penitentiary  at  Leavenworth,  Kansas. 


138  THE    PUBLIC    CONSCIENCE 

THE  WAGER  OF  BATTLE 
By  Hayne  Davis 

Outlook,  73  :  927. 

In  our  day,  if  two  individuals  have  a  dispute  over 
the  ownership  of  land,  they  go  to  the  courts  of  that 
nation  in  which  the  land  is  situated  and  produce  the 
evidence  on  which  each  claims  to  be  the  owner  of  the 
land,  and  the  court  adjudges  that  the  land  belongs  to 
him  who  proves  the  better  title  to  it.  It  is  hard  to 
realize  that,  for  the  trial  of  such  controversies  in  Eng- 
land, there  was  at  one  time  no  way  provided  by  the 
laws  except  battle  between  the  adverse  claimants  or 
their  champions.  Yet  such  was  the  fact  prior  to  the 
time  of  Henry  11.  In  his  time  (middle  of  the  twelfth 
century)  the  Government  authorized  the  trial  of  such 
controversies  by  jury,  if  the  parties  were  so  disposed, 
at  the  same  time  leaving  the  disputants  free  to  prove 
their  contentions  in  the  old  way  of  battle. 

Under  the  laws  of  England,  certain  crimes  are  pun- 
ishable by  death;  others,  in  former  centuries,  were 
punished  by  mutilating  the  body  of  the  convict,  on  the 
idea  of  an  "  eye  for  an  eye."  In  all  crimes  punishable 
by  death  or  by  mutilation  of  the  body,  two  accusations 
for  the  same  offense  were  allowed,  one  by  the  State, 
the  other  by  the  next  of  kin  of  the  person  injured. 
The  accusation  by  the  next  of  kin  was  called  "  appeal " 
of  murder  or  arson,  etc.,  and  the  trial  in  such  accusa- 
tions was  by  evidence  to  court  and  jury,  or  by  battle 


SOMETIMES    REPROBATED,    OFTEN    NOT     139 

between  the  accuser  and  accused,  as  the  latter  pre- 
ferred. 

Such  being  the  law  of  England,  the  right  to  wage 
battle  was  demanded  under  the  following  circum- 
stances : 

At  seven  o'clock  in  the  morning  on  May  27,  1817, 
the  dead  body  of  a  girl  named  Mary  Ashford  was 
found  in  a  pond  near  Birmingham.  She  had  left  a 
dance  at  midnight  of  May  26th  in  company  with  Abra- 
ham Thornton.  They  were  seen  together  going  home- 
ward at  three  a.m.  At  the  dance  Thornton  was  heard 
(not  by  Mary  Ashford,  but  by  another)  to  say  some- 
thing which  pointed  to  him  as  the  murderer.  When 
arrested,  blood  was  found  upon  Thornton,  so  as  to 
point  to  him  as  the  criminal  even  without  the  other 
circumstances.  Thornton  was  indicted  on  a  charge  of 
murder  and  rape,  and  was  acquitted  by  a  jury  on  both 
charges.  Thereupon  William  Ashford,  the  brother  of 
the  dead  girl,  brought  an  appeal  of  murder  against 
him.  It  was  in  such  accusations  of  crime  that  the 
right  of  battle  existed,  and  on  March  16,  1818,  Thorn- 
ton pleaded  to  the  appeal  "  Not  guilty,  and  I  am  ready 
to  defend  the  same  by  my  body,"  and  thereupon,  tak- 
ing off  his  glove,  he  threw  it  upon  the  floor  of  the 
court.  The  prosecution  was  surprised.  They  expected 
another  trial  by  jury.  A  discussion  followed,  in  which 
counsel  for  Ashford  undertook  to  show  that  the  right 
of  trial  by  battle  was  not  allowable  in  the  case,  but 
the  court  decided  unanimously  that  it  was. 

Lord  Ellenboro,  the  Lord  Chief  Justice  of  England, 


140  THE    PUBLIC    CONSCIENCE 

said,  in  delivering  the  opinion :  "  The  general  law  of 
the  land  is  in  favor  of  wager  of  battle,  and  it  is  our 
duty  to  pronounce  the  law  as  it  is,  not  as  we  may  wish 
it  to  be.  Whatever  prejudice  may  exist  against  this 
mode  of  trial,  still,  as  it  is  the  law  of  the  land,  the 
court  must  pronounce  judgment  for  it."  Ashford's 
counsel  took  time  to  consider,  and  a  few  days  later 
notified  the  court  that  Ashford  would  not  accept  the 
wager.  Thereupon,  on  Monday,  April  20,  1818,  the 
case  was  dismissed  and  Thornton  released.  He  came 
to  America  and  was  lost  sight  of.  William  Ashford, 
one  of  the  parties  to  this  suit,  lived  until  1867. 

Comment.  Had  the  prosecutor  of  the  "  appeal"  of  murder 
taken  up  this  challenge  and  been  killed  by  the  defendant, 
the  said  defendant  could  not  have  been  held  by  any  law 
of  England,  although  he  might  have  been  guilty  of  the 
original  murder  as  well  as  this  —  in  such  a  case  —  legal 
killing.  And  had  the  prosecutor  killed  the  defendant, 
who  might  have  been  innocent,  there  would  equally  have 
been  no  law  to  touch  him.  The  Wager  of  Battle  was  a 
legal  duel  closely  akin  to  trial  by  ordeal  which  presup- 
posed that  God  would  judge  in  favor  of  the  innocent. 

The  Wager  of  Battle  is  no  longer  legal  in  England  nor, 
so  far  as  I  know,  anywhere.  It  is  an  interesting  combina- 
tion of  the  original  method  of  combat  between  opponents 
and  of  state  action. 


SOMETIMES    REPROBATED,    OFTEN    NOT     141 

Duel  —  Wager  of  Battle 

TRIAL   BY   COMBAT 

George  Neilson,  p.  330 

In  this  book  the  Ashford-Thornton  case  of  appeal 
of  murder  is  given  and  then  Neilson  adds  "  The  case 
did  not  stand  alone.  In  Ireland  in  1815  a  murderer, 
named  Clancy,  had  escaped  similarly  by  an  unex- 
pected offer  of  battle,  when  he  was  put  on  trial  at  the 
assizes.  Immediate  legislation  was  therefore  necessary 
to  prevent  the  thing  from  becoming  a  standing  obstacle 
to  justice.  The  appeal  of  murder  of  which  wager  of 
battle  formed  an  inherent  part  had  been  defended  in 
Parliament  in  1774  as  "  that  great  pillar  of  the  con- 
stitution." In  1819  this  great  pillar  has  become  a 
dangerous  nuisance,  and  a  bill  was  brought  in  to  take 
it  away.  After  not  a  little  parliamentary  eloquence 
and  several  petitions,  it  was  read  a  third  time  in  the 
House  of  Commons  on  22nd  March  by  a  majority  of 
64  to  2.  On  22nd  June  it  received  the  royal  sanction 
and  became  law.  .  .  .  This  provision  made  an  end  of 
wager  of  battle. 

Comment.  Duehng  has  now  been  for  many  years  for- 
bidden by  law  in  the  United  States  and  Great  Britain 
in  the  army  and  navy  as  well  as  in  civil  life.  In  past 
times,  however,  the  most  celebrated  and  distinguished 
men  have  fought  duels  which  were  not  only  contrary  to 
law  but  fully  approved  by  a  certain  public  opinion.    The 


142  THE    PUBLIC    CONSCIENCE 

popular  sympathy  with  Hamilton  in  the  famous  duel  be- 
tween Aaron  Burr  and  Alexander  Hamilton  had  much  to 
do  with  the  change  of  public  opinion  which  led  to  the  de- 
legalizing  of  the  duel. 

It  is  unnecessary  to  say  more  on  the  subject  here  as  the 
duel  hardly  exists  anywhere  in  a  recognizable  form  either 
in  Great  Britain  or  the  United  States  and  is  fast  dis- 
appearing everywhere.  It  is  questionable,  however, 
whether  public  opinion  would  justify  the  execution  of  a 
man  who  should  even  to-day  kill  a  man  in  a  duel;  for, 
however  unfair  his  conduct  might  be,  it  would  still  be 
considered  by  the  majority  of  people  a  "  fair  fight"  or 
one  in  which,  at  least,  the  other  had  a  "  sporting  chance." 


Dueling 
Austria,    1900 

A  young  lieutenant  of  Hussars,  the  Marquis  Antoine 
Tacoli,  who  had  served  for  seven  years  in  the  army; 
taking  upon  himself  to  defend  an  Archduke  whom 
another  officer,  Monsieur  Szilay,  was  speaking  against, 
was  insulted  by  the  latter.  Immediately  everything 
was  done  to  force  Tacoli  to  challenge  Szilay  to  a  duel. 
Tacoli  refused  on  the  ground  that  he  was  a  Catholic. 
He  was  branded  as  a  coward,  deprived  of  his  commis- 
sion and  placed  in  the  reserve  as  a  private  soldier. 
Later  he  was  registered  as  a  common  soldier  as  the 
rank  of  private  was  considered  too  honorable  for  him. 

In  1911,  Emperor  Francis  Joseph  issued  an  order 
directing  that,  wherever  possible,  his  officers  should 


SOMETIMES    REPROBATED,    OFTEN    NOT     143 

seek  redress  for  indignity  and  insult,  not  through  the 
practice  of  dueling  but  through  the  law  courts.  No 
duels  are  to  be  fought  among  oflGicers  for  trifling  causes 
but  only  for  the  most  serious  matters,  and  then  not 
until  a  court  of  honor,  composed  of  the  disputants' 
fellow  officers,  has  declared  that  no  other  course  is 
open  to  them.    (Outlook,  99  :  400.) 


Duels  on  the  Continent  of  Europe 

(See  Cur.  Lit.  28  :168.    Fortnightly  Rev.,  August  1908.    R.  of  R.'s, 

38  :  495.) 

Prince  Alfonso  de  Bourbon  et  Autriche-Este  formed 
an  Anti-Dueling  League. 

In  the  spring  of  1900  two  Austrian  officers,  excellent 
friends,  agreed  to  fight  a  duel  because  of  some  re- 
marks made  by  one  of  them,  but  they  made  up  their 
dispute  almost  immediately  and  no  longer  wished  to 
fight.  In  spite  of  this  their  seconds  obliged  them  to 
do  so.  Although  one  of  the  two  thought  he  fired  in 
the  air,  he  actually  shot  the  Comte  de  Bissengen  dead 
on  the  spot.  The  Comte  left  a  yomig  wife,  who  was 
enceinte,  and  two  little  children. 

Outlook,  103  :  518,  March,  1913. 

In  the  Bundesrath  a  resolution  adopted  in  the 
Reichstag  a  year  and  a  half  before,  asking  that  duel- 
ing in  the  army  be  effectually  prohibited,  was  rejected. 
The  Bundesrath  gave  countenance  to  dueling  when 
conducted  "  upon  ideal  grounds."    It  declared  that  no 


14.4  THE    PUBLIC    CONSCIENCE 

end  could  be  put  to  dueling  until  measures  were  taken 
to  apply  not  only  to  the  army  but  to  all  classes. 

But,  as  noted,  the  Austrian  Emperor  endeavored  to 
restrict  if  not  to  abolish  the  duel.  The  late  Russian 
Emperor  opposed  it  for  all  but  the  most  serious 
offenses.  General  Kuropatkin  had  urged  the  Czar  to 
abolish  it  entirely  among  officers  and  the  Italian  King 
is  most  seriously  opposed  to  the  duel. 

(Article  in  Fortnightly,  90:  169,  1908,  gives  full  his- 
tory of  Anti-Dueling  League.) 

Century  Magazine,  Vol.  59  :  478.    Date,  1900. 

Sir  Walter  Scott,  whose  fine  sense  of  honor  is  thrice 
proven,  was  charged  by  General  Gouraud,  one  of  Napo- 
leon's attendants  at  St.  Helena  with  making  improper 
reflexion  upon  him  in  Sir  Walter's  "  Life  of  Napoleon." 
It  was  rumored  that  he  would  call  the  historian  to 
personal  account  for  this.  Scott  was  entirely  willing 
to  settle  the  matter  off  the  field  of  honor.  He  would 
show  the  general  his  authorities,  but  if  he  should  ask 
"  any  apology  or  explanation  for  having  made  use  of 
his  name  "  it  was  "  his  purpose  to  decline  it  and  stand 
to  consequences."  He  was  aware  he  could  "  march  off 
upon  the  privileges  of  literature  "  but  he  had  no  taste 
for  that  species  of  retreat;  "  if  a  gentleman  says  to  me, 
I  have  injured  him,  however  captious  the  quarrel  may 
be,  I  certainly  do  not  think  as  a  man  of  honor,  I  can 
avoid  giving  him  satisfaction  without  doing  intolerable 
injury  to  my  own  feelings,  and  giving  rise  to  the  most 
mahgnant  animadversions." 


SOMETIMES  REPROBATED,  OFTEN  NOT  145 

Fortunately  he  was  not  called  upon  to  fight  a  duel; 
but  he  showed  unmistakably  that,  in  spite  of  his  age, 
he  would  have  so  fought  had  he  been  challenged. 

In  the  same  article  reference  is  made  to  a  duel  be- 
tween a  friend  of  his  son-in-law  Lockhart  and  one  who 
had  assailed  Lockhart  in  a  literary  controversy, — 
"  Sir  Walter  was  shocked  at  his  (the  assailant's)  death 
but  the  moral  he  drew  was  not  abstention  from  the 
field  of  honor  but  the  desirability  of  a  less  satirical 
style  on  the  part  of  Lockhart." 

Mention  is  made  also  of  Robert  Browning's  approval 
and  Elizabeth  Barrett's  disapproval  of  dueling. 

Euthanasia 

In  Chicago,  November  17th,  1916,  Dr.  J.  Haiselden 
refused  to  operate  to  save  the  life  of  the  child  of  Mr. 
and  Mrs.  A.  Bollinger,  on  the  ground  that  the  child, 
born  defective  in  body  and  also  probably  in  mind, 
would  be  better  permitted  to  die  than  live  an  imbecile. 
The  child  died.  The  coroner's  jury  declared  that  it 
found  no  evidence  that  the  baby  would  have  become 
mentally  or  morally  defective  and  expressed  the  belief 
that  its  physical  defects  in  a  measure  might  have 
yielded  to  plastic  treatment. 

The  physical  defects  found  included  many  malfor- 
mations —  fusion  of  the  two  kidneys  into  one  located 
on  the  left  side,  absence  of  the  right  external  ear, 
and  of  the  external  auditory  canal,  etc. 

The  jury,  composed  of  six  leading  physicians  and 
surgeons,  declared  that  Dr.  Haiselden  was  "  morally 


146  THE    PUBLIC    CONSCIENCE 

and  ethically  {sic)  within  his  rights  in  refusing  to 
operate."  State's  Attorney  Hogue  refused  to  prosecute, 
saying  that  Dr.  Haiselden  had  only  obeyed  the  parents 
of  the  child.  (Article  in  Information  Annual,  1915.) 
Independent,  60  :  291.    1906. 

A  bill  was  recently  introduced  into  the  Ohio  Legisla- 
ture providing  that  when  an  adult  of  sound  mind  has 
been  fatally  hurt,  or  is  so  ill  that  recovery  is  impos- 
sible, or  is  suffering  extreme  pain  without  hope  of  re- 
lief, his  physician,  if  not  a  relative  and  if  not  interested 
in  any  way  in  the  person's  estate,  may  ask  his  patient 
in  the  presence  of  three  witnesses  if  he  is  ready  to  die. 
If  the  answer  is  in  the  affirmative,  then  three  other 
physicians  are  to  be  summoned  in  consultation,  and  if 
they  agree  that  the  case  is  hopeless  they  are  to  make 
arrangements  to  put  the  person  out  of  pain  with  as 
little  discomfort  as  possible. 

The  bill  did  not  pass.  The  project  was  bitterly  op- 
posed by  The  Independent  which  expressed  surprise 
that  Charles  Eliot  Norton  should  approve  of  anythmg 
so  crude,  cruel  and  barbarous. 

III.  LEGAL:  BUT  NOT  ALWAYS  APPROVED 
BY  THE  GROUP 

Foster,  C.  L.,  267.  The  execution  of  malefactors 
under  sentence  of  death  for  capital  crimes  hath  been 
considered  by  former  writers  as  a  species  of  homicide 
founded  in  necessity.  I  think  it  hath  with  propriety 
enough  been  so  considered ;  for  the  ends  of  government 


LEGAL    BUT    NOT    ALWAYS    APPROVED      147 

cannot  be  answered  without  it.  .  .  .  Where  persons 
having  authority  to  arrest  and  imprison,  using  the 
proper  means  for  that  purpose,  are  resisted  in  so  doings 
and  the  party  making  resistance  is  killed  in  the  strug- 
gle, this  homicide  is  justifiable.  .  .  .  Where  a  felony 
is  committed,  and  the  felon  fleeth  from  justice,  and  a 
dangerous  wound  is  given,  it  is  the  duty  of  every  man 
to  use  his  best  endeavors  for  preventing  an  escape ;  and 
if  in  the  pursuit  the  party  fleeing  is  killed,  where  he 
cannot  be  otherwise  overtaken,  this  will  be  deemed 
justifiable  homicide;  for  the  pursuit  was  not  barely 
warrantable,  it  is  what  the  law  requireth  and  will 
punish  the  wilful  neglect  of. 

Foster,  C.  L.,  262.  Parents,  masters,  and  other  per- 
sons, having  authority  in  foro  domestico,  may  give 
reasonable  correction  to  those  under  their  care;  and 
if  death  ensueth  without  their  fault,  it  will  be  no  more 
than  accidental  death.  But  if  the  correction  exceedeth 
the  bounds  of  due  moderation,  either  in  the  measure 
of  it  or  in  the  instrument  made  use  of  for  that  purpose, 
it  will  be  either  murder  or  manslaughter  according  to 
the  circumstances  of  the  case. 

REX  V.  COMPTON 

Assizes,    1349 

H.  de  Compton  was  indicted  for  feloniously  killing 
H.  Vesey.  It  appeared  that  said  Vesey  and  others  had 
been  indicted  for  various  felonies  and  that  de  Compton 


148  THE    PUBLIC    CONSCIENCE 

and  others  had  warrants  for  their  arrest.  These  war- 
rants were  shown  and  their  surrender  demanded.  They 
would  not  surrender  but  fought  with  the  officers. 
Divers  persons  were  killed  in  the  melee,  among  them 
Vesey.  The  indictment  of  de  Compton  was  for  this 
killing. 

The  jury  found  him  not  guilty. 

Thorp,  C.  J.  "  They  have  acquitted  you  of  this 
charge,  and  we  acquit  you.  And  I  say  well  to  you 
that  when  a  man  kills  another  by  his  warrant  he  may 
well  avow  the  fact,  and  we  will  freely  acquit  him  with- 
out waiting  for  the  King's  pardon.  .  .  .  And  in  many 
other  cases  a  man  may  kill  another  without  impeach- 
ment, as  if  thieves  come  to  rob  a  man,  or  to  commit 
burglary  in  his  house,  he  may  safely  kill  them,  if  he 
cannot  take  them.  And  note,  how  it  was  with  a  gaoler 
who  came  to  the  gaol  with  a  hatchet  in  his  hand,  and 
just  then  the  prisoners  had  broken  their  irons,  and 
were  all  ready  to  have  killed  him,  and  they  wounded 
him  sorely,  but  with  the  hatchet  in  his  hand  he  killed 
two,  and  then  escaped,  etc.  And  it  was  adjudged  in 
this  case  by  all  the  council  that  he  would  not  have 
done  well  otherwise,  etc.  Likewise  he  said  that  every 
person  might  take  thieves  in  the  act  of  larceny,  and 
felons  in  the  act  of  felony,  and  if  they  would  not  sur- 
render peaceably,  but  stood  on  their  defense,  or  fled, 
in  such  case  he  might  kill  them  without  blame,  etc." 


LEGAL  BUT  NOT  ALWAYS  APPROVED   149 

STOREY  V.  STATE 

Supreme  Court  of  Alabama,  1882. 

(Reported  71  Alabama  329.    Beale,  p.  511.) 

Storey  was  convicted  of  the  murder  of  Josiah  Hall 
whom  he  had  killed  when  in  pursuit  of  him  for  the 
purpose  of  recapturing  a  horse  "  which  the  deceased 
had  either  stolen,  acquired  by  fraud,  or  else  unlaw- 
fully converted  to  his  own  use." 

Somerville,  J.  cites  many  authorities,  text  book 
writers  as  well  as  judicial  opinions.  From  his  opinion 
I  may  quote  the  following: 

"  The  question  is  presented  ...  as  to  the  circum- 
stances under  which  one  can  kill  in  order  to  prevent 
the  perpetration  of  a  larceny  which  is  made  a  felony  by 
statute  ...  a  subject  full  of  difficulties  and  conflict- 
ing expressions  of  opinion  from  the  very  earliest  his- 
tory of  our  common-law  jurisprudence.  The  broad 
doctrine  intimated  by  Lord  Coke  was  that  a  felon  may 
be  killed  to  prevent  the  commission  of  a  felony  with- 
out any  inevitable  cause  or  as  a  matter  of  mere  choice 
with  the  slayer  ...  (3  Inst.  56).  If  such  a  rule  ever 
prevailed,  it  was  at  a  very  early  day,  before  the  dawn 
of  a  milder  civilization,  with  its  wiser  system  of  more 
benignant  laws;  for  Blackstone  states  the  principle  to 
be,  that '  where  a  crime,  in  itself  capital,  is  endeavored 
to  be  committed  by  force,  it  is  lawful  to  repel  that 
force  by  the  death  of  the  party  attempting '  (4  Comm. 


150  THE    PUBLIC    CONSCIENCE 

181).  .  .  .  Both  of  these  views  have  been  repudiated 
by  the  later  authorities.  .  .  .  One  may,  as  Mr.  Bishop 
expresses  it, '  oppose  another  who  is  attempting  to  per- 
petrate any  felony,  to  the  extinguishment,  if  need  be, 
of  the  felon's  existence'  (1  Bish.  Cr.  Law  849-850). 
.  .  .  but  '  the  practical  carrying  out  of  the  right  thus 
conceded,  is,  in  some  circumstances,  dangerous,  and 
wherever  admitted,  it  should  be  carefully  guarded ' 
(Par.  855).  Mr.  Greenleaf  confines  the  rule  to  'the 
prevention  of  any  atrocious  crime  attempted  to  be  com- 
mitted by  force ;  such  as  murder,  robbery,  house  break- 
ing in  the  night  time,  rape,  mayhem,  or  any  other  act 
of  felony  against  the  person.' 

"  It  is  said  by  Nicholas,  J.  (Gray  v.  Coombs)  that 
the  right  to  kill  in  order  to  prevent  the  perpetration 
of  crime  should  depend  '  more  upon  the  character  of 
the  crime,  and  the  time  and  manner  of  its  attempted 
perpetration,  than  upon  the  degree  of  punishment 
attached  by  law.'  There  is  much  reason  in  this  view, 
and  a  strong  case  might  be  presented  of  one's  shooting 
a  felon  to  prevent  the  asportation  of  a  stolen  horse 
in  the  night-time,  where  no  opportunity  is  afforded  to 
recognize  the  thief,  or  obtain  speedy  redress  at  law. 
Both  the  Roman  and  Athenian  laws  made  this  dis- 
tinction in  favor  of  preventing  the  perpetration  of 
theft  by  night,  allowing,  in  each  instance,  the  thief  to 
be  killed  when  necessary,  if  taken  in  the  act  (4  Black. 
Comm.  180,  181). 

•'  The  alleged  larceny  in  the  present  case,  if  it  oc- 
curred at  all,  was  in  the  open  daylight,  and  the  defend- 


SEMI-LEGAL  151 

ant  is  not  shown  to  have  been  unable  to  obtain  his 
redress  at  law.  '  No  man,  under  the  protection  of  the 
law/  says  Sir  Michael  Foster,  '  is  to  be  the  avenger  of 
his  own  wrongs.'  " 

Punishments  under  the  Articles  of  War. 

The  following  offenses  are  punishable  by  death; 
striking  a  superior  officer,  mutiny,  sleeping  at  sentinel 
duty,  misbehavior  before  the  enemy,  compelling  a 
surrender,  disclosing  the  watchword,  corresponding 
with  the  enemy,  desertion  in  time  of  war  or  advising 
to  desert,  forcing  safeguards  during  a  rebellion. 

These  punishments  are,  of  course,  those  allotted  to 
soldiers  and  they  are  to  be  tried  by  courts  martial. 

Comment.  Needless  to  say  there  are  few  such  cases  tried 
and  fewer  still  result  in  convictions  and  the  actual  carry- 
ing out  of  the  death  sentence.  They  are  all,  however, 
closely  akin  to  treason  and  doubtless  there  may  be  cases 
of  each;  but  the  records  are  exceedingly  private  and 
scanty. 

IV,     SEMI-LEGAL 

CASES  OF  LYNCH  LAW 

From  "  Lynch  Law,"  by  J.  E.  Cutler 

(P.  44.)  "  In  the  Province  of  New  Hampshire  in 
June,  1753,  two  white  men  killed  two  Indians  who 
were  accused  of  having  carried  off  two  negroes  the  pre- 
ceding year.    After  several  months  the  men  were  ar- 


152  THE    PUBLIC    CONSCIENCE 

rested,  indicted  for  the  murder,  placed  in  the  jail  at 
Portsmouth,  and  their  trial  set  for  March  21st,  1754. 
The  night  previous  to  the  day  appointed  for  the  trial 
a  party  of  their  neighbors  appeared  in  Portsmouth, 
broke  open  the  jail  and  set  them  free.  This  outrage 
produced  great  excitement  in  the  community  —  some 
endeavoring  to  discover  and  retake  the  murderers,  and 
others  favoring  their  escape.  Both  the  murder  and  the 
rescue,  however,  were  generally  justified  in  the  com- 
munity, and,  although  rewards  were  offered  by  Gov- 
ernor Wentworth  for  the  apprehension  of  Bowen  and 
Morrill,  yet  in  a  short  time  they  went  openly  about 
their  business,  without  fear  of  molestation,  and  the 
men  engaged  in  breaking  the  jail  at  Portsmouth, 
though  well  known,  were  never  called  to  account,  but, 
on  the  contrary,  were  considered  as  having  performed  a 
most  meritorious  act.  In  fact,  some  of  the  most  sub- 
stantial men  in  the  country  were  engaged  in  the  rescue, 
—  by  act  or  advice,  —  and  the  Government  could  not 
have  made  an  arrest  had  they  made  the  attempt.  Pres- 
ents were  afterwards  made  to  the  relatives  of  these 
Indians  by  the  Government  of  New  Hampshire,  and 
thus  the  '  blood  was  wiped  away '  to  the  satisfaction  of 
the  Indians."  (New  Hamp.  Provincial  Papers,  VI, 
262-66.) 

During  the  22  years  from  1882  to  1903  inclusive, 
the  total  number  of  persons  lynched  in  the  United 
States  was  3337,  the  number  decreasing  during  the  last 
decade;  of  these  2385  were  in  the  South  and  752  in  the 


SEMI-LEGAL  153 

North;  of  those  lynched  in  the  East  and  West  602 
were  white  and  75  black,  and  of  those  in  the  South  567 
were  white  and  1985  black  (South,  former  slave  states, 
West,  territory  west  of  Mississippi  River  excluding 
Mo.,  Ark.,  La.,  Tex.  and  Okla.;  East,  east  of  Miss, 
excluding  slave  states.  E.  &  W.  make  up  North.) 
Lynchings  occur  mostly  in  periods  of  idleness  of  the 
lower  classes ;  in  the  summer  more  are  lynched  for 
crimes  against  the  person  and  in  the  winter  (in  the 
West)  for  crimes  against  property;  more  blacks  than 
whites  were  lynched  between  1882  and  1903,  the  num- 
bers being  2060  negroes  of  whom  40  were  women,  and 
1169  white,  of  whom  23  were  women;  of  the  707  blacks 
lynched  for  rape  675  were  in  the  South;  783  blacks 
were  lynched  for  murder,  and  753  of  these  were  in  the 
South;  most  of  the  lynchings  of  whites  were  in  the 
West,  the  lynching  of  negroes  increased  somewhat  out- 
side the  South  and  decreased  somewhat  in  the  South. 
(Ency.  Brit.,  11th  ed.) 

Lynch  Law  in  North  Carolina,  1765-71 

(Condensed  from  Cutler's  Book,  pp.  48  ff.)  In 
Noith  Carolina  at  this  period  frontier  conditions  were 
utterly  lawless.  Prior  to  1769  the  only  court  of  civil 
and  criminal  jurisdiction  in  the  Province  was  at 
Charlestown :  which  was  so  far  away  as  to  give  practi- 
cal immunity  to  those  lawlessly  inclined.  The  inhabi- 
tants had  early  petitioned  for  the  establishment  of 
more  local  courts,  but,  failing  to  secure  them  there  was 


154  THE    PUBLIC    CONSCIENCE 

established  an  association  known  as  the  Regulators, 
whose  raison  d'etre  was  primarily  the  regulating  of 
"  public  grievances  and  abuses  of  power."  But  they 
were  much  like  earlier  Regulators  in  their  procedure. 

These  Regulators,  in  number  about  150,  September, 
1770,  "  attacked  the  Superior  Court  which  was  in  ses- 
sion at  Hillsboro,  severely  whipped  several  men  who 
had  incurred  their  enmity,  and  destroyed  considerable 
property." 

They  were  not  put  down  until  after  a  pitched  battle 
between  them  and  the  Militia. 

Comment.  This  case  is  interesting  as  exemplifying  revolt 
against  insufficiency  and  tyranny  of  their  government 
rather  than  as  a  necessary  means  of  enforcing  order 
against  bandits  and  murderers  (see  especially  p.  49  in 
Cutler). 

FRANK   CASE 

See  Supreme  Court  of  the  U.  S.,  Feb.  25,  1915. 
Also  Inf.  Ann.,  1915,  p.  267. 

Leo  M.  Frank  was  sentenced  on  May  10th,  1915,  to 
be  hanged  on  June  22nd,  for  the  murder  of  Mary 
Phagan.  The  details  of  this  killing  are  familiar 
through  many  newspaper  accounts  and  do  not  concern 
us  here,  whether  Frank  was  guilty  or  innocent.  Many 
unprejudiced  persons  believed  him  to  be  innocent.  The 
Georgian  Supreme  Court  had  refused  to  release  him  on 
habeas  corpus  proceeding.  His  attorneys  had  con- 
tended that  the  trial  court  lost  jurisdiction  by  abdicat- 


SEMI-LEGAL  155 

ing  its  functions  through  fear  of  mob  violence  and  by- 
arranging  for  Frank  to  remain  out  of  court  when  the 
verdict  was  announced.  This  decision  was  appealed 
from  to  the  Supreme  Court  of  the  United  States  which 
affirmed  the  decision  of  the  Georgia  Court.  The  United 
States  Supreme  Court  held  that  Frank's  allegations  of 
hostile  tumult  in  and  about  the  court  room  had  been 
rejected  by  competent  state  tribunals  as  untrue.  Jus- 
tices Holmes  and  Hughes  dissented.  They  contended 
that  Frank  had  made  out  a  prima  facie  case  of  inter- 
ference with  the  deliberations  of  the  jury  through  the 
prevalence  of  mob  spirit  in  and  about  the  court  room 
which  should  entitle  him  to  a  review. 

Thousands  of  letters  and  telegrams  requesting  a 
commutation  of  the  sentence  to  imprisonment  for  life 
were  received  by  Governor  Slaton  and  other  author- 
ities. Governor  Slaton  did  so  commute  the  sentence 
on  June  21st  after  the  Georgia  Prison  Commission  had 
refused  to  recommend  it.  This  decision  was  reached 
barely  twenty-four  hours  before  the  time  set  for  the 
execution  and  after  Frank  had  been  taken  secretly  from 
the  Fulton  County  Jail  to  the  state  prison  farm  at 
Milledgeville.  "  Feeling  as  I  do  about  this,"  said  the 
Governor,  in  giving  his  statement,  "  I  would  be  a 
murderer  if  I  allowed  this  man  to  hang.  It  means  that 
I  must  live  in  obscurity  the  rest  of  my  days,  but  I 
would  rather  be  plowing  in  a  field  than  to  feel  for 
the  rest  of  my  life  that  I  had  that  man's  blood  on  my 
hands." 

Mobs  threatened  the  Governor's  home  for  several 


156  THE    PUBLIC    CONSCIENCE 

days,  but  were  quieted  by  troops.  On  the  26th  a 
demonstration  occurred  at  Atlanta  when  Governor 
Slaton  retired  from  the  executive  office.  With  cries 
of  "Lynch  him!  "  the  rioters  attempted  to  seize  the 
Governor  who  escaped  bodily  harm  only  through  the 
protection  of  a  large  force  of  police  and  state  troops. 

Frank,  while  serving  his  sentence,  was  attacked  while 
asleep  July  17th,  by  William  Green,  a  fellow  convict, 
who  was  serving  a  sentence  for  murder.  Though  his 
neck  was  nearly  cut  in  two,  he  did  not  die  of  these  in- 
juries. He  was  kidnapped  by  a  mob  who  overpowered 
the  prison  authorities  on  August  16th,  taken  by  auto- 
mobile to  Marietta  and  hanged  in  a  grove  within  a 
stone's  throw  of  the  birthplace  of  Mary  Phagan. 

An  investigation  of  the  lynching  was  made  by  the 
Grand  Jury  of  Cobb  County  which  reported  that  there 
was  no  evidence  sufficient  to  enable  them  to  indict  any 
one.  Five  guards  and  deputy  wardens  were  discharged 
as  a  result  of  this  lynching. 

Comment.  The  points  to  be  observed  are  that  mob  spirit 
ruled  throughout  and  completely  superseded  the  ordinary 
processes  of  law.  Governor  Slaton's  career  was  ruined, 
the  persons  who  committed  the  lynching  were  evidently 
approved  by  the  spirit  of  the  community.  Frank's  chief 
crime  apparently  was  that  he  was  a  Jew. 

KU   KLUX   KLAN  — VIGILANTES 

New  York  Times,  Editorial,  Sept.  26,  1916. 

Apropos  of  the  proposal  to  erect  a  statue  to  Colonel 
McAfee,  the  founder  of  the  Ku  Klux  Klan,  the  editor 


SEMI-LEGAL  157 

quotes  the  Montgomery,  Ala.  Advertiser  as  follows: 
"  Kukluxism  is  an  interesting  phase  of  Southern  civili- 
zation, an  institution  that  rose  up  to  do  a  definite  thing 
and  disappeared  when  its  purpose  had  been  accom- 
plished.   It  will  live  always  in  the  lore  of  this  people." 

The  editor  then  comments  that,  owing  to  Mr. 
Thomas  Dixon,  this  generation  is  being  taught  to 
idealize  the  Klan.  "After  the  Mcx\fees  let  go  of  it, 
it  fell  into  the  hands  of  scoundrels  and  committed 
many  bloody  and  shameful  outrages.  In  the  begin- 
ning, however,  it  was  an  uprising  like  that  of  the  San 
Francisco  Vigilance  Committee,  for  which  no  Cali- 
fornian  will  ever  dream  of  apologizing. 

It  was  the  uprising  of  Confederate  soldiers  against 
an  intolerable  tyranny.  It  was  violent  and  lawless,  but 
so  was  the  San  Francisco  revolt ;  both  were  cases  where 
civilization  was  prostrate  under  the  feet  of  ignorance 
and  vice." 

The  Ku  Klux  afterwards  became  the  instrument  of 
tyranny  and  crime;  the  Vigilance  Committee  did  not. 

"  It  is  more  the  North  than  the  South  that  has  rea- 
son to  blush  at  the  name  of  the  Ku  Klux  Klan ;  that 
name  recalls  a  time  when  men  took  the  law  into  their 
own  hands,  but  it  recalls  still  more  the  unclean  tyranny 
that  forced  them  to  do  so;  and  of  that  tyranny  the 
North  has  long  repented." 


158  THE    PUBLIC    CONSCIENCE 

GENERAL   COMMENT   ON   LYNCH   LAW 

Lynch  law  is  peculiarly  characteristic  of  American 
life  but  not  confined  to  it ;  nor  is  it  limited  to  any  one 
section  of  the  United  States,  as  the  records  show.  The 
crime  for  which  people  are  usually  lynched  is  the  crime 
of  being  a  member  of  a  race  both  despised  and  feared ; 
but  this  is  not  always  so.  There  can  be  no  doubt  that 
lynching  at  present  is  a  manifestation  of  barbarism, 
a  complete  negation  of  law  and  government ;  but  that 
was  not  true  of  the  early  lynchings,  of  the  Vigilantes 
in  California  nor  perhaps  of  the  Ku  Klux  Klan  at  the 
beginning. 

Those  movements  represented  law  and  order  and 
were  a  terror  to  evil  doers.  That  they  degenerated  into 
pure  lawlessness  must  not  blind  us  to  their  initial  char- 
acter, which  was  quasi-judicial.  The  killings  and  burn- 
ings of  which  lynchers  and  the  like  are  guilty  today 
are  then  murder  pure  and  simple,  mob  murder.  The 
simple  fact  is  that  no  one  has  yet  been  executed  for 
this  type  of  murder.  It  is  an  apparent  exception  to 
the  law  that  murder  always  results  in  total  exclusion 
from  the  society  in  which  it  is  committed.  It  would 
seem  that  this  toleration  of  murder  is  explained,  not 
by  the  fear  that  the  accused  will  not  get  the  full 
penalty  of  the  law,  but  by  the  determination  to  impose 
something  more  than  the  law  and  to  strike  terror  into 
the  negroes  especially,  since  a  negro  is  emphatically 
looked  upon  as  an  alien,  member  of  another  and  hos- 
tile group,  whom  one  may  kill  without  impropriety  and 


SEMI-LEGAL  159 

with  positive  credit.  It  seems  likely  that  this  will 
always  be  the  case  to  some  extent.  Lynchings  of 
negroes  occur  in  the  South  very  much  more  frequently 
than  in  the  North,  since  the  negroes  are  a  menace, 
they  being  in  so  great  numbers,  often  in  large  majority, 
whereas  there  are  so  few  of  them  relatively  in  Northern 
States  that  there  is  no  fear  of  dominance. 

Judge  A.  W.  Tourgee  says  (53d  Congress  Senate  Re- 
port 113,  Part  2,  p.  11) :  "  The  victims  of  these  outrages 
(Ku  Klux)  in  almost  every  case  belonged  to  one  of 
the  following  classes :  (a)  colored  men;  (b)  white  men 
who  acted  with  the  blacks  politically;  (c)  renegade 
members  of  the  Ku  Klux  Klan,  or  of  the  Democratic 
party." 

"  Fraud  in  elections  was  excused  in  reconstruction 
days  in  the  South.  Everyone  who  has  been  at  all 
familiar  with  the  state  of  feeling  there  knows  that  this 
wholesale  system  of  fraud  is  a  matter  of  boastful  jest 
with  the  very  best  of  citizens.  They  do  not  deem  it  a 
matter  of  wrong  or  evil  because,  as  they  say,  '  it  pre- 
vents nigger  rule.'  This  public  opinion  is  the  safe- 
guard of  any  unlawful  act  having  alike  object  in  view." 

(In  the  same  report  there  are  excerpts  from  various 
codes  of  Southern  States,  of  great  interest.) 

The  Governor  of  North  Carolina  June  27,  1894,  in 
a  letter  to  a  clergyman  in  New  York,  after  recounting 
the  orderly  process  of  the  law  even  in  some  horrible 
cases  of  rape  and  murder,  adds  "  if  now  and  then  there 
are  cases  of  lynching,  it  is  not  because  the  person  who 
committed  it  is  a  negro,  but  because  the  circumstances 


160  THE    PUBLIC    CONSCIENCE 

surrounding  the  commission  of  the  crime  is  (sic)  so 
revolting,  that  the  people  are  aroused  and  under  the 
influences  of  the  moment,  the  idea  takes  possession  of 
the  crowd  that  swift  vengeance  must  be  meted  out  to 
such  a  villain  and  brute." 

Note  that  five  Italians  were  lynched  in  Louisiana 
in  1894  for  a  murder  not  entirely  unprovoked.  They 
were  probably  regarded  as  aliens  to  a  considerable  ex- 
tent —  members  of  a  hostile  group ;  but  this  will  not 
explain  all  lynchings,  nor  the  failure  to  punish  them. 


V.    DOUBTFUL 

Assassination 

New  York  Times,  August  9,  1916. 

The  jury  that  will  hear  a  $100,000  suit  filed  yester- 
day in  the  Supreme  Court  will  be  called  on  to  deter- 
mine if  an  assassin  is  a  murderer.  The  plaintiff  is 
Miroslav  Sichinsky,  a  Ukranian  lecturer  and  editor, 
who,  on  April  12,  1908,  shot  and  killed  Count  Andreas 
Potocki,  Governor  of  Galicia,  in  Lemberg.  Sichinsky 
is  suing  George  Raffalovich  of  the  same  nationality, 
who  is  a  writer  under  the  name  of  "  Bedwin  Sands." 

Sichinsky  admits  in  the  complaint  against  Raffalo- 
vich that  he  killed  Count  Potocki,  but  he  contends  that 
to  call  him  a  murderer  merely  on  that  account  is  to 
impute  moral  turpitude,  whereas  the  Department  of 
Commerce  and  Labor  decided  last  December,  when  he 
was  admitted  at  Ellis  Island  after  protracted  hearings 


DOUBTFUL  161 

in  his  case,  that  the  assassination  of  the  Galician  Gov- 
ernor was  a  political  act,  which  did  not  affect  his  right 
to  enter  this  country  or  unfit  him  to  become  a  citizen 
if  he  chose. 

Sichinsky's  chief  complaint  against  the  defendant  is 
that  Raffalovich,  in  a  circular  letter  addressed  to  Ukra- 
nians  in  this  country,  called  him  a  "  murderer  "  and 
"  gunman,"  and  he  denies  very  stoutly  that  he  is 
either. 

CASE   OF   COLONEL   SEXBY 

Author  of  the  Pamphlet  "  Killing  No  Murder," 
Published  in  1657. 

"A  direct  incitement  to  the  assassination  of  Oliver 
Cromwell.  On  its  title  page  it  professed  to  be  by 
William  Allen  but  its  real  author  seems  to  have  been 
the  Colonel  Sexby,  a  leveller,  who  had  gone  over  to  the 
Royalists  and  in  1656,  having  come  from  Flanders  to 
shoot  Cromwell,  joined  the  Protector's  escort  in  Hyde 
Park  and  almost  secured  his  opportunity.  But  he 
went  back  to  Flanders  leaving  .  .  .  money  .  .  .  with 
Miles  Sindercombe  who  was  to  do  the  deed."  Various 
attempts  failed.  Many  aided  and  abetted  and  the 
thing  was  known  "  to  the  prince  who  was  afterwards 
Charles  II." 

Sindercombe  was  betrayed  by  Henry  Toope,  a  Life- 
guardsman,  was  arrested,  tried,  convicted  and  sen- 
tenced to  death,  but  took  poison  on  the  day  before  that 
which  had  been  appointed  for  his  execution.     Then 


162  THE    PUBLIC    CONSCIENCE 

Sexby  wrote  and  printed  his  pamphlet  and  traveled 
about  England  in  disguise  distributing  it.  He  was 
after  a  time  arrested  and  sent  to  the  Tower,  where  he 
became  mad  and  died  within  a  year. 

Taken  from  the  Introduction  to  Henry  Morley's 
"  Famous  Pamphlets,"  G.  Routledge  &  Sons. 

RITUAL  MURDER  MYTH 

Independent,  Nov.  20,  1913. 

The  jury  in  the  Yuchinsky  murder  case,  after  de- 
liberating an  hour  and  a  half,  brought  in  a  verdict  of 
acquittal  for  Mendel  Beihs  on  November  10th.  The 
verdict  is  ambiguous  because  the  two  questions  put 
to  the  jury  were  so  framed  as  to  leave  an  imputation 
of  ritual  murder. 

A  Christian  boy  employed  at  the  Zaiteff  brick  works, 
a  Jewish  concern,  was  wounded  in  47  places  and  then 
murdered  with  the  same  instrument.  Beilis  and  others 
were  accused  of  the  murder  as  having  been  performed 
for  ritual  purposes.  The  prosecution  endeavored  to 
establish  the  ancient  accusation  of  the  use  of  Christian 
blood  in  Hebrew  ceremonies ;  but  without  success.  Im- 
mense excitement  was  produced  throughout  the  world 
by  this  trial.  The  Russian  Government  refused  to  re- 
ceive the  petition  to  the  Czar  signed  by  the  Roman 
Catholic  and  Episcopalian  bishops  or  any  other  of  the 
American  remonstrances.  Similar  protests  in  Russia 
resulted  in  punishment  for  the  remonstrants.  One 
hundred  and  twenty  members  of  the  St.  Petersburg 


DOUBTFUL  163 

Bar  Association  signed  a  protest  against  the  Beilis 
trial  and  tlie  Court  of  Appeals  has  ordered  them  prose- 
cuted for  it. 

Comment.    The  guilt  or  innocence  of  the  accused  did  not 
seem  to  matter  at  the  trial. 

There  can  be  little  doubt  that  the  whole  trial  was  ex- 
cited by  anti-semitic  prejudice  or  that  the  victim  was 
saved  by  the  indignant  public  opinion  of  the  world. 


THE  UNWRITTEN  LAW 

The  Nation,  New  York,  July  25,  1907. 

Mrs.  Mary  E.  Bowie  in  La  Plata,  Maryland,  was 
acquitted  in  July,  1907,  for  the  killing  of  Hubert  Posey 
for  a  wrong  done  to  Mrs.  Bowie's  daughter.  The 
offense  here  consisted  in  the  failure  to  marry  the  in- 
jured woman.  Mrs.  Bowie  and  her  son  demanded 
that  the  ceremony  be  immediately  performed,  a  license 
having  been  secured.  Posey  refused,  and  Mrs.  Bowie 
made  good  her  alternative  "  that  he  would  die  right 
here."  The  killing  was  therefore  premeditated,  and  no 
attempt  was  made  to  deny  it.  The  jury  unanimously 
found  both  not  guilty. 

Contrasting  case  —  Mrs.  Birdsong  killed  her  physi- 
cian after  making  the  most  serious  charges  against  him 
and  giving  him  no  chance  to  clear  his  reputation.  The 
courts  condemned  her  to  life  imprisonment,  but  the 
Nation  anticipated  that  she  would  be  pardoned. 

A  negro  case  of  the  same  kmd  occurred  in  Columbia, 
S.  C.     The  offense  was  admitted  and  the  jury  was 


164  THE    PUBLIC    CONSCIENCE 

white.    The  judge  clung  to  the  written  law  but  the 
jury's  verdict  was  not  guilty. 

The  Lynchburg  News  (Va.)  editorial  is  quoted:  "  Let 
it  be  known  that  under  given  circumstances  her  laws 
(Virginia's)  will  by  implication  give  to  man  the  right 
to  kill,  and  the  time  would  not  be  long  coming  when 
the  condition  would  serve  as  excuse  and  shelter  of  de- 
fense, behind  which  the  murderer  would  attempt  to 
hide,  and  often  succeed  in  the  essay.  A  '  trumped  up  ' 
pretext,  collusion,  conspiracy,  and  what  not,  would  be 
the  means  by  which  many  a  guilty  wretch  could  escape 
his  just  deserts."  Yet,  The  Nation  adds,  "  it  finally 
concludes  that  the  law  should  be  left  unwritten."  A 
case  called  the  "  Loving  Case,"  similar  to  the  Bowie 
case  above  cited,  had  recently  occurred  in  Virginia  with 
an  acquittal. 


Statute  and  Common  Law 

From  MITCHELL  v.  STATE 
Supreme  Court  of  Ohio,  1884 

(Reported  42   Ohio  State,  383.     Beale,  6,  3d  ed.) 

Okey,  J.  In  Ohio,  as  under  the  federal  government, 
we  have  no  common  law  offenses.  No  act,  however 
atrocious,  can  be  punished  criminally,  except  in  pur- 
suance of  a  statute  or  ordinance  lawfully  enacted. 
Judge  Tappan,  in  Ohio  v.  Lafferty,  held  that  common 
law  crimes  were  punishable  in  Ohio,  but  Judge  Goode- 


DOUBTFUL  165 

now  completely  refuted  the  soundness  of  that  view; 
but  it  is  proper  to  say  that  while  the  rule  is  well 
settled  that  a  statute  defining  a  crime  and  prescribing 
therefor  must  be  strictly  construed;  still,  where  the 
legislature  in  defining  a  crime,  adopts  the  language 
employed  by  writers  of  recognized  authority  in  defin- 
ing the  crime  at  common  law,  the  presumption  is  that 
it  was  intended  the  commission  of  acts  which  at  com- 
mon law  would  constitute  such  a  crime,  should  consti- 
tute a  crime  under  the  statute,  and  the  statute  will 
be  so  construed.  (Cf.  Parke,  J.,  in  Mirehouse  v.  Ren- 
nell,  1  CI.  &  F.  527,  546.) 

Our  common  law  system  consists  in  the  applying  to 
new  combinations  of  circumstances  those  rules  of  law 
which  we  derive  from  legal  principles  and  judicial 
precedents;  and  for  the  sake  of  attaining  uniformity, 
consistency  and  certainty,  we  must  apply  those  rules, 
where  they  are  not  plainly  unreasonable  and  incon- 
venient, to  all  cases  which  arise;  and  we  are  not  at 
liberty  to  reject  them,  and  to  abandon  all  analogy  to 
them,  in  those  to  which  they  have  not  yet  been  judi- 
cially applied,  because  we  think  that  the  rules  are  not 
as  convenient  and  reasonable  as  we  ourselves  could 
have  devised. 

Cf.  also  Blackstone's  Commentaries,  Book  I, 
passim. 

"  The  only  method  of  proving  that  this  or  that 
maxim  is  a  rule  of  common  law,  is  by  showing  that  it 
hath  been  always  the  custom  to  observe  it." 

"  The  doctrine  of  the  law  then  is  this ;  that  prece- 


166  THE    PUBLIC    CONSCIENCE 

dents  and  rules  must  be  followed,  unless  flatly  absurd 
or  unjust." 

The  general  rule  is  "  that  the  decisions  of  courts  of 
justice  are  the  evidence  of  what  is  common  law." 


Attempts  to  Commit  Crimes  or  Misdemeanors 

Summarized  from  United  States  v.  Stephens 

(Reported  8  Sawyer,  116) 

"  There  are  acts  which  may  be  fairly  said  to  be  done 
in  pursuance  of  or  in  combination  with  an  intent  to 
commit  a  crime;  but  are  not,  in  a  legal  sense,  a  part 
of  it,  and  therefore  do  not  with  such  intent  constitute 
an  indictable  attempt;  for  instance,  the  purchase  of 
a  gun  with  a  design  to  commit  murder,  or  the  pur- 
chase of  poison  with  the  same  intent.  These  are  con- 
sidered in  the  nature  of  preliminary  preparations  — 
conditions,  not  causes  —  and  although  co-existent  with 
a  guilty  intent,  are  indifferent  in  their  character,  and 
do  not  advance  the  conduct  of  the  party  beyond  the 
sphere  of  mere  intent.  They  are,  it  is  true,  the  neces- 
sary conditions  without  which  the  shooting  or  poison- 
ing could  not  take  place,  but  they  are  not,  in  the  eye 
of  the  law,  the  cause  of  either." 

Dr.  Wharton  says  (1  Wharton,  C.  L.,  sec.  181)  "To 
make  the  act  an  indictable  attempt,  it  must  be  a  cause 
as  distinguished  from  a  condition;  but  it  must  go  so 
far  that  it  would  result  in  the  crime  unless  frustrated 
by  extraneous  circumstances." 


DOUBTFUL  167 

Bishop  (1  Bish.  C.  L.,  Sec.  669)  says:  "  It  is  plain 
that  if  a  man  who  has  a  wicked  purpose  in  his  heart 
does  something  in  its  nature  entirely  foreign  from  that 
purpose,  he  does  not  commit  a  criminal  attempt  to  do 
the  thing  proposed.  On  the  other  hand,  if  he  does 
what  is  exactly  adapted  to  accomplish  the  evil  meant, 
yet  proceeds  not  far  enough  in  the  doing  for  the  cog- 
nizance of  the  law,  he  still  escapes  punishment.  Again, 
if  he  does  a  thing  not  completely,  as  the  result  dis- 
closes, adapted  to  accomplish  the  wrong,  he  may  under 
some  circumstances  be  punishable,  while  under  other 
circumstances  he  may  escape." 

In  People  v.  Murray,  Field,  C.  J.  said :  "  The  evi- 
dence shows  very  clearly  the  intention  of  the  defend- 
ant ;  but  something  more  than  mere  intention  is  neces- 
sary to  constitute  the  offense  charged.  Between 
preparation  for  the  attempt  and  the  attempt  itself, 
there  is  a  wide  difference.  The  preparation  consists 
in  devising  or  arranging  the  means  or  measures  neces- 
sary for  the  commission  of  the  offense;  the  attempt  is 
the  direct  movement  towards  the  commission  after 
the  preparations  are  made.  .  .  .  The  attempt  contem- 
plated by  the  statute  must  be  manifested  by  acts  which 
would  end  in  the  consummation  of  the  particular 
offense,  but  for  the  intervention  of  circumstances  in- 
dependent of  the  will  of  the  party." 

Cf.  Glover  v.  Commonwealth,  Virginia,  1889,  where 
Lewis,  P.  delivered  the  opinion  of  the  court.  The  Code 
(of  Virginia)  enacts  that "  on  an  indictment  for  felony, 
the  jury  may  find  the  accused  not  guilty  of  the  felony, 


168  THE    PUBLIC    CONSCIENCE 

but  guilty  of  an  attempt  to  commit  such  felony." 
Judge  Lewis  further  said : 

"An  attempt  in  criminal  law  is  an  apparent  unfin- 
ished crime,  and  hence  is  compounded  of  two  elements, 
viz.:  (1)  The  intent  to  commit  a  crime;  and  (2)  a 
direct  act  done  toward  its  commission,  but  falling 
short  of  the  execution  of  the  ultimate  design.  ...  It 
must  be  something  more  than  mere  preparation." 

Cf.  also  Commonwealth  v.  Kennedy,  Massachusetts, 
1897,  Holmes,  J."  .  .  .  We  assume  that  an  act  may 
be  done  which  is  expected  and  intended  to  accomplish 
a  crime,  which  is  not  near  enough  to  the  result  to  con- 
stitute an  attempt  to  commit  it,  as  in  the  classic  in- 
stance of  shooting  at  a  post  supposed  to  be  a  man.  As 
the  aim  of  the  law  is  not  to  punish  sins,  but  is  to  pre- 
vent certain  external  results,  the  act  done  must  come 
pretty  near  to  accomplishing  that  result  before  the 
law  will  notice  it."  [Italics  mine,  G.C.C.]  ..."  Im- 
possibility of  achievement  is  not  necessarily  a  defense 
.  .  .  Commonwealth  v.  Taylor,  132  Mass.  261  ...  In 
the  case  of  crimes  exceptionally  dealt  with  or  greatly 
feared  [e.g.,  treason  or  offenses  against  the  honor  of 
women.  G.C.C.]  acts  have  been  punished  which  were 
not  even  expected  to  effect  the  substantive  evil  un- 
less followed  by  other  criminal  acts." 

In  another  opinion  by  Holmes,  then  Chief  Justice 
(Commonwealth  v.  Peaslee,  117  Mass.  267,  in  1901) 
a  series  of  illustrations  is  used,  as  follows: 

"  When  the  servant  of  a  contractor  had  delivered 
short  rations  of  meat,  by  the  help  of  a  false  weight 


DOUBTFUL  169 

which  he  had  substituted  for  the  true  one,  intending 
to  steal  the  meat  left  over,  it  was  held  by  four  judges, 
two  of  whom  were  Chief  Justice  Erie  and  Mr.  Justice 
Blackburn,  that  he  could  be  convicted  of  an  attempt 
to  steal.  ...  So  lighting  a  match  with  intent  to  set 
fire  to  a  haystack,  although  the  prisoner  desisted  on 
•discovering  that  he  was  watched.  So  getting  into  a 
stall  with  a  poisoned  potato,  intending  to  give  it  to  a 
horse  there,  which  the  prisoner  was  prevented  from 
doing  by  his  arrest.  .  .  .  The  same  has  been  held  as 
to  paying  a  man  to  burn  a  barn.  On  the  other  hand, 
making  up  a  false  invoice  at  the  place  of  exportation 
with  intent  to  defraud  the  revenue  is  not  an  offense  if 
not  followed  up  by  using  it  or  attempting  to  use  it. 
So  in  People  v.  Murray,  14  Cal.  159,  the  defendant's 
elopement  with  his  niece  and  his  requesting  a  third 
person  to  bring  a  magistrate  to  perform  the  marriage 
ceremony,  was  held  not  to  amount  to  an  attempt  to 
contract  the  marriage.  .  .  .  However  it  may  be  at 
common  law,  under  a  statute  like  ours,  punishing  one 
who  attempts  to  commit  a  crime  '  and  in  such  attempt 
does  any  act  towards  the  commission  of  such  offense,' 
it  seems  to  be  settled  that  the  defendant  could  be 
convicted.  .  .  ." 

In  Walsh  v.  People  (Illinois,  1872)  Mr.  Justice 
Thornton  after  quoting  Lord  Mansfield,  in  a  bribery 
case,  as  saying:  "  In  many  cases,  especially  in  bribery 
at  elections  to  parliament,  the  attempt  is  a  crime.  It 
is  complete  on  his  side  who  offers  it,"  adds  "  Why  is 
the  mere  unsuccessful  attempt  to  bribe  criminal?    The 


170  THE    PUBLIC    CONSCIENCE 

officer  refuses  to  take  the  offered  reward  and  his  in- 
tegrity is  untouched,  his  conduct  uninfluenced  by  it. 
The  reason  for  the  law  is  plain.  The  offer  is  a  sore 
temptation  to  the  weak  or  the  depraved.  It  tends 
to  corrupt ;  and  as  the  law  abhors  the  least  tendency  to 
corruption,  it  punishes  the  act  which  is  calculated  to 
debase,  and  which  may  affect  prejudicially  the  morals 
of  the  community." 

Comment.    From  these  and  similar  decisions  and  opinions, 
the  author  may  hazard  two  conclusions:  — 

1.  The  principle  of  legal  decisions  seems  to  be  not  to 
punish  any  act  which  will  not  probably  bring  into  being 
a  felony. 

2.  The  law  punishes  only  those  offenses  which  inter- 
fere seriously  with  public  safety.  This  is  in  accord  with 
the  fundamental  legal  maxim,  De  minimis  non  curat  lex. 


NATURAL    LAW    OF    KILLING  171 


THE  NATURAL  LAW  OF  KILLING 

It  is  obvious,  from  the  cases  cited  and  from  the  his- 
tory of  homicide,  that  society  as  such  has  never  im- 
posed any  such  law  as,  Thou  shalt  not  kill.  The  law 
is  rather  the  reverse  of  this.  Pacifism  has  been  the 
policy  of  individuals  and  of  some  religions,  never  the 
policy  of  states  or  civic  bodies  of  any  character  what- 
soever. The  killing  of  an  enemy  of  the  group  has  al- 
ways been  a  meritorious  act.  The  apparent  exceptions 
to  this  are  not  real  exceptions. 

No  man  may  kill  an  alien  enemy  of  England  or 
America,  for  example,  even  in  time  of  war  except  under 
conditions  of  war ;  but  this  is  because  the  alien  enemy 
within  one's  land  is  considered  to  be  under  the  pro- 
tection of  the  civil  law  and  in  so  far  not  an  alien.  Ex- 
tradition laws  are  now  in  force  between  most  civilized 
countries,  even  between  the  most  bitter  natural 
enemies ;  but  this  only  means  that,  for  the  civil  govern- 
ment of  criminals,  the  nations  so  allied  are  one,  to  the 
extent  of  the  extradition  policy. 

The  law  then  is,  no  dangerous  enemy  of  the  group 
shall  survive,  if  the  group  believes  him  to  be  an  enemy, 
and  is  able  to  compass  his  destruction.  The  grada- 
tions follow: 

1.  Killing  enemies  in  war  is  always  approved. 

2.  Strikers,  rioters,  mutineers,  etc.,  are  shot  down 


172  THE    PUBLIC    CONSCIENCE 

without  compunction  under  the  orders  of  the  state 
when  they  refuse  to  disperse  peaceably. 

3.  Execution  by  the  state  of  those  whose  action 
threatens  the  existence  of  the  state  or  the  idea  of  the 
state,  is  universally  practiced.  The  modern  tendency 
to  abolish  capital  punishment  ajid  substitute  life 
imprisonment  is  no  real  exception,  inasmuch  as,  un- 
less this  purpose  is  thwarted  by  sentimental  or 
political  pardons,  life  imprisonment  effectively 
abolishes  a  man's  membership  in  the  group. 

4.  Lynch  law,  however  corrupt  it  may  have  be- 
come, has  usually  arisen  as  a  protest  against  weak- 
ness, negligence  and  inefficiency  on  the  part  of 
authorities.  The  tacit  approval  given  to  it  —  omit- 
ting those  cases  where  the  community  is  terrorized 
—  stamps  these  acts  as  semi-legal. 

5.  Killing  in  self  defense  or  in  the  defense  of 
others,  when  plainly  necessary  to  self  preservation 
or  the  preservation  of  others,  is  probably  a  part  of 
group  opposition  to  enemies. 

6.  Sir  Michael  Foster's  dictum  was  "  No  man 
under  the  protection  of  the  law  is  to  be  the  avenger 
of  his  own  wrongs."  This  makes  murder,  as  here- 
tofore defined,  a  crime  which  must  be  punished  by 
the  abolition  of  the  offender,  in  some  way.  The  state 
has  definitely  taken  over  the  avenging  of  private 
wrongs,  and,  however  negligent  the  state  may  be  in 
this  respect,  will  not  tolerate  interference  with  its 
function.  Murder  and  treason  are  fatal  to  the  ex- 
istence of  any  society;  hence  the  murderers  or 
traitors  must  be  abolished  or  the  society  will  perish. 
No  society  as  such  has  ever  committed  suicide. 

Manslaughter  and  assaults  are  not  fatal  to  the 
idea  of  society  but  threaten  its  peace. 
Euthanasia,  practised  by  individuals,  while  not 


NATURAL    LAW    OF    KILLING  173 

falling  under  Sir  Michael's  dictum,  would  be  assum- 
ing the  function  of  God  or  of  the  state  by  an  in- 
dividual or  individuals.  Unless  practised  under 
state  sanction  and  control  it  would  be  a  disintegrat- 
ing force  and  hence  will  not  be  allowed. 

The  patria  potestas  is  now  much  weakened.  Any 
punishment  by  a  parent  which  should  result  in  the 
death  of  a  child  would  probably  be  deemed  immoder- 
ate today  by  court  and  jury;  but  unless  something 
more  than  parental  discipline  were  proven,  there 
would  be  no  criminal  action  by  the  state  in  case  of 
a  death. 

7.  The  duel  could  not  logically  survive  in  a  state 
which  expressly  states  that  no  words,  however  scur- 
rilous and  insulting,  justify  killing.  As  a  matter  of 
fact,  they  often  do,  to  the  extent  that  provocation 
is  reckoned  with  in  the  sentence  imposed.  Besides, 
the  duel  is  extraneous  to  the  state. 

8.  With  the  change  of  religious  faith  the  opposi- 
tion to  suicide  and  the  condemnation  thereof  by 
society  tends  to  disappear. 

9.  The  modern  practise,  which  begins  to  hold 
men  responsible,  criminally,  for  what  were  formerly 
deemed  "  acts  of  God  "  or  accidental  killings,  is  a 
substantiation  of  the  principle  enunciated.  The 
present  failure  to  punish  as  manslaughter,  food 
adulterations  which  result  in  death,  drug  purveying, 
the  reckless  use  of  unseaworthy  vessels,  employing 
men  in  deadly  trades  for  profit,  and  the  like,  is 
probably  due  to  the  lack  of  recognition  on  the  part 
of  Society  that  these  things  are  inimical  to  its 
welfare. 

10.  No  one  is  punished  who  is  not  responsible. 
The  attempts  to  define  sanity,  age  of  responsibility, 
etc.,  have  been  thus  far  very  inaccurate.    No  in- 


174  THE    PUBLIC    CONSCIENCE 

sanity  murders  have  been  included  here,  because 
the  judgments  of  courts  thereon  are  but  a  mass  of 
incoherencies. 

The  quotations  from  Foster  and  Hawkins,  as  well 
as  numberless  decided  cases,  show  that  an  act  must 
always  be  established  as  an  act  of  the  accused.  The 
act  need  not  be  physical.  Qui  facit  per  alium  facit 
per  se  is  one  of  the  most  established  maxims  of  the 
law.  The  law  of  agency  is  but  a  long  variation  on 
this  theme.  The  competency  of  all  not  insane,  nor 
imbecile  nor  very  young,  is  never  brought  in  ques- 
tion. 

11.  Malice  is  defined  by  Judge  Shaw  in  the  Web- 
ster case  from  the  legal  point  of  view.  Our  query 
is  as  to  its  significance. 

It  is,  in  homicide,  an  appeal  to  the  primitive 
method  of  settling  differences  and  is  a  denial  of 
society,  like  many  lynchings.  Society's  verdict  upon 
it  is  an  illustration  of  the  old  saying  "  Whoso 
sheddeth  man's  blood,  by  man  shall  his  blood  be 
shed."  One  can  hardly  say  that  the  individual  has 
usurped  the  function  of  the  state  since  killing  was 
originally  the  function  of  the  individual;  but  he  is 
claiming  a  function  which  has  been  entirely  assumed 
by  the  state. 

12.  Intent  as  found  in  the  law  implies  a  will 
with  power  to  choose  another  course  of  action.  "A 
person  must  be  presumed  to  intend  to  do  that  which 
he  voluntarily  and  wiljully  does  in  fact  do,  etc.," 
(Italics  mine.)  "A  man  is  bound  to  curb  his  pas- 
sions, etc.,"  "  guilty  knowledge,"  and  similar  phrases 
are  constantly  found.    This  is  closely  connected  with 

13.  Causation:  Which  is  sometimes  very  re- 
mote, and  other  causes  enter  in  which  appear  to  be 
more  effective  than  the  act  of  the  accused.     In  the 


NATURAL    LAW    OF    KILLING  175 

Holland  case  the  wounded  man's  life  could  probably 
have  been  saved  except  for  his  own  stubbornness,  yet 
his  stubbornness  is  not  considered  anti-social  while 
the  assault  was  —  hence  the  assailant  must  assume 
the  consequences  of  his  act.  Compare  also  the  Mink 
case  where  there  was  the  same  kind  of  remote  causa- 
tion, and  also  burglary  and  arson  (where  killing  en- 
sues), in  which  causation  is  direct.  But  in  the 
Bradshaw  case  the  element  of  sport,  chivalry,  vol- 
untary combat  approved  by  society,  entered  in. 
Nothing  but  a  foul  blow  and  proven  enmity  or 
malice  could  have  overcome  the  initial  disposition 
to  regard  this  accident  as  at  the  player's  risk.  So 
with  railroad  accidents  and  such  like  —  they  seem 
to  be  regarded  as  a  part  of  the  inevitable  evil  in  the 
world.  Many  of  the  families  of  victims  of  the  Slo- 
cum  disaster  appealed  for  the  pardon  of  Captain 
Van  Schaick. 

14.  Killing  is  thus,  as  a  consequence  of  all  that 
precedes,  seen  to  be  approved  by  society  whenever 
the  person  killed  is  shown  to  be  either  an  open 
enemy  without  the  group  or  a  traitor  to  it  within. 
The  principle  is  well  illustrated  in  the  oration  of 
Demosthenes  against  Aristocrates  where  he  quotes 
the  law  —  "And  if  any  one  shall  kill  a  murderer  or 
be  the  cause  of  his  death,  while  he  keeps  away  from 
the  border  market  and  from  the  games  and  Amphic- 
tyonic  sacrifices,  such  person  shall  be  liable  to  the 
same  penalties  as  if  he  had  killed  an  Athenian.  .  .  . 
What  does  this  mean?  He  considered  that,  if  a  man 
who  has  fled  from  his  country  on  a  charge  of  murder 
and  been  condemned,  has  once  escaped  and  saved 
himself,  though  he  ought  to  be  expelled  from  the 
native  land  of  his  victim,  it  is  not  righteous  to  kill 
him  in  every  place.    What  was  the  legislator's  view? 


176  THE    PUBLIC    CONSCIENCE 

That,  if  we  slay  people  who  have  fled  to  other 
countries,  others  will  slay  those  who  have  fled  to 
Athens.  And  should  this  be  the  case,  the  only 
refuge  that  is  left  for  the  unfortunate  will  be  abol- 
ished. What  is  this?  The  power  of  removing  from 
the  land  of  the  murdered  to  a  land  where  none  have 
been  injured,  and  there  dwelling  in  security." 
(Italics  mine.) 

When,  by  virtue  of  treaties,  groups  hitherto^ 
hostile  become  for  any  purpose  one,  then  killing 
of  the  members  of  either  group  will  be  disapproved 
and  punished.  Should  all  groups  become  one  in 
any  legal  sense,  the  crime  of  killing  will  become 
of  universal  character.  Only  as  all  human  beings 
are  recognized,  legally,  as  belonging  to  the  same 
group,  with  no  alien  outsiders,  can  we  have  the 
universal  law.  Thou  shalt  do  no  murder. 

Of  the  Unwritten  Law,  so  called,  we  can  only  say 
that  it  seems  to  be  a  survival  of  the  primitive  lex 
talio7iis  which  finds  favor  in  communities  where 
there  is  a  sentimental  chivalry  persisting  but  not 
necessarily  any  higher  standard  of  sex  honor.  It  is 
certain,  however,  that  public  opinion  in  America 
would  nowhere  support  the  execution  of  any  one 
who  had  thus  avenged  woman's  honor.  Perhaps  this 
is  an  obscure  but  genuine  adhesion  to  our  principle, 
in  that  it  indicates  a  determination  to  preserve  the 
sanctity  of  the  home. 


OFFENSES  OF  INDIVIDUALS  AGAINST  PROPERTY  WITHIN  A  CIVILIZED  GROUP 
Intentional  wrong  —  always  condemned 


I.   Directly  affecting  the  person 


II.   Larceny  under  peculiar  conditions  <•/  life 


III.   Fraud,  victims  deceived 


IV.   Appropriation  by  compulsion  {not  physical) 


V.  Breaches  of  trust 


VI.   Attack  upon  rights  of  property  in  personality 


f  Burglary 
Robbery 
I  Brigandage 

Larceny  —  (a)  petit 
I  (6)  grand 

r  Horse  and  cattle  stealing 
I  IVicliing —  game  aud  seal 


I  Theft   of  provisions  or  supplies  of   vifal 
[      consequence  to  owners  in,  e.g.,  war  timos 

Forgery 

Swindling 

Cheating,  in  weights  and  measures 

in   misrepresentation   of  quality 

or  character  of  goods  sold 
Obtaining   money    or   goods    under   false 

pretences 
Disseminating  false  news 
Creation  of  holding  companies  to  evade 

Reorganizations    to    evade    law    and     to 

defraud 
Smuggling 

f  Extortion 

1  Biiickmail 

iEndiezzlement 
Alit^conding  with  or  misappropriating  funds 
Combinations  and  reorganizations  of  rail- 
roads and  other  companies  (but  see  above 
under  "Frauds") 
Dishonest  bankruptcy 
False  entries  of  charges 

Alienation  of  affection 

Adultery^ based  upon  the  ehattel  nature 

of  woman  under  the  law 
Bigamy 
Seduction 
Breaeli  of  promise  of  marriage 


Dower  rights 
Libel  and  Slander 
Aiding  escape  of  slavi 

larceny 
Damages  for  death  i 

Personal  insurance 


-  when  not  simple 


Not  necessarily  intentional  wrong 

To  air,  earth 
Liens 


Vlt.  Rights  as  between  two  parlies  not  neca 
sarily  dishonest  or  wishing  to  defraud  i 
any  way 


id  wate 


Franchises 

Limitation  of  liability,  tickets,  baggage, 
damage  to  person,  etc. 

Trade  marks  and  names 

Trade  agreements 

Rates  and  taxes  (public  service  corpora- 
tions) 

Inheritances 

Fixtures 

Trespass  —  all  kinds 

Negligent  cases  —  Riots 

Responsibility    of    tlie    perso 


nbccile: 


(infants, 
lunatics,   etc.    civilly   respon- 


The  property  nf  an  r 
group,  never  the  priva 


Kmiiicnt  domain 
Contracts 
Nuisances 

Accidental    and    negligent    destructic 
property 

,-  is  always  to  be  seized  or  destroyed,  but  it  is  only  the  cnemv  c 


m 


PART  II 

PRESERVATION  OF  PROPERTY 


INTENTIONAL   WRONG  — ALWAYS 
CONDEMNED 

I.    DIRECTLY  AFFECTING  THE  PERSON 
Burglary 

Staunford,  Pleas  of  the  Crown,  30  a 

"  Burglars  are  those  who  feloniously  in  time  of  peace 
break  houses,  churches,  walls,  towers  or  gates,  for  which 
burglary  they  shall  be  hanged  though  they  took 
nothing  away.  But  yet  they  ought  to  have  felonious 
intent  to  rob  or  kill  or  do  other  felony.  All  indict- 
ments for  burglary  are  for  nocturnal  breaking. 

"  Burglary  is  a  felony  at  the  Common  Law,  in  break- 
ing and  entering  the  mansion-house  of  another,  or  (as 
some  say)  the  walls  or  gates  of  a  walled  town  in  the 
night,  to  the  intent  to  commit  some  felony  within  the 
same,  whether  the  felonious  intent  be  execdted  or 
not. 

"  There  are  some  opinions,  that  burglary  may  be 
committed  at  any  time  after  sun-set  and  before  sun-ris- 
ing; but  it  seems  the  much  better  opinion  that  the  word 
noctanter,  which  is  precisely  necessary  in  every  indict- 
ment for  this  offense,  cannot  be  satisfied  in  a  legal  sense, 
if  it  appear  upon  the  evidence,  that  there  was  so  much 
daylight  at  the  time  that  a  man's  countenance  might 
be  discerned  thereby.  .  .  .  Both  an  actual  entry  and 
breaking  are  required  to  complete  this  offense. 

(1  Hawk.  p.  C.  Ch.  17) 
179 


180  THE    PUBLIC    CONSCIENCE 

"Any  the  least  entry  with  the  whole,  or  but  with  part 
of  the  body,  or  with  any  instrument,  or  weapon,  will 
satisfy  the  word  enter  in  an  indictment  for  burglary. 

"A  house  wherein  a  man  dwells  but  part  of  the  year 
.  .  .  may  be  called  his  dwelling  house  .  .  .  whether 
any  person  were  actually  therein  or  not,  at  the  time 
of  the  offense. 

"All  out  buildings  ...  are  looked  upon  as  a  part  (of 
the  house)  and  consequently  burglary  may  be  com- 
mitted in  them." 

This  was  law  in  England  as  early  as  1554. 

It  has  been  held  ^  by  all  the  judges  of  England,  that 
breaking  glass  in  a  window  and  with  hooks  drawing 
carpets,  etc.  out  of  the  window  was  burglary  (1584); 
that  breaking  and  puttmg  the  inmates  of  a  house  in 
terror  of  their  lives  was  burglary  though  there  was  no 
entering  (1607);  that  obtaining  admission  by  fraud 
and  then  robbing  was  burglary  (1650);  that  opening 
the  chamber  door  of  his  mistress  by  a  servant,  the  said 
door  fastening  with  a  bolt  and  the  servant's  intent  be- 
ing to  commit  a  rape,  was  burglary  (1722);  but  that 
breaking  and  entering  a  house  not  yet  occupied  by  its 
recent  purchaser  but  in  charge  of  a  care-taker,  was  not 
burglary  as  the  place  could  not  be  regarded  as  a  dwell- 
ing house. 

A  thief  may  enter  a  house  through  a  door  or  window 
left  open  accidentally  without  being  a  burglar;  but  he 
is  one,  if,  after  entering  thus,  he  turn  the  key  or  unlatch 

1  Cf.  cases  under  Burglary  —  Beale's  Cases  on  Criminal  Law, 
p.  1028  S. 


DIRECTLY    AFFECTING    THE    PERSON    181 

the  door  of  a  chamber  with  the  intent  to  commit  felony 

(1786). 

All  the  above  cases  are  from  English  courts.  In 
Massachusetts  in  1829  it  was  decided  that  the  break- 
ing through  a  net  work  of  cords,  covering  a  window 
otherwise  open,  constituted  burglary  when  entering 
was  joined  to  it.  "  It  is  enough  that  the  house  be 
secured  in  the  ordinary  way;  so  that  by  the  careless- 
ness of  the  owner  in  leaving  the  door  or  window  open, 
the  party  accused  of  burglary  be  not  tempted  to  enter." 

Emott,  J.  (New  York)  in  1863  held,  in  the  case  of 
entering  by  an  inner  door  a  tenement  in  a  house  occu- 
pied by  several  families  that  "Any  and  every  settled 
habitation  of  a  man  and  his  family  is  his  house  or  his 
mansion,  in  respect  to  its  burglarious  entry." 

Folger,  J.  (New  York,  1878)  in  a  case  where  the 
prisoner  had  broken  into  a  room  used  for  business 
purposes  only  but  within  the  four  outer  walls  and 
under  the  same  roof  as  the  other  rooms  of  the  build- 
ing affirmed  the  judgment  of  the  lower  court  that  this 
was  burglary.  "  I  will  say  that  the  definition  of  the 
crime  of  burglary  in  the  first  degree,  given  by  the  Re- 
vised Statutes,  does  not,  so  far  as  this  question  is  con- 
cerned, materially  differ  from  the  crime  of  burglary  as 
given  at  the  common  law,  to  wit,  '  a  breaking  and 
entermg  the  mansion  house  of  another  in  the  night, 
with  intent  to  commit  some  felony  within  the  same ' 
.  .  .  the  essence  of  the  crime  of  burglary  at  common 
law  is  the  midnight  terror  excited,  and  the  liability 
created  by  it  of  danger  to  human  life,  growing  out  of 


182  THE    PUBLIC    CONSCIENCE 

the  attempt  to  defend  property  from  depredation.  .  .  . 
Any  out-house  within  the  curtilage,  or  same  common 
fence  with  the  dwelling  house  itself,  was  considered 
to  be  parcel  of  it,  on  the  ground  that  the  capital 
house  protected  and  privileged  all  its  branches  and 
appurtenants,  if  within  the  curtilage  or  home-stall." 

It  was  held  by  Buckill,  C.  J.  (Alabama,  1899)  that 
a  thief  who  bored  a  hole  in  the  floor  of  a  corn-crib 
filled  with  shelled  corn,  and  stole  by  holding  a  sack 
under  the  hole  so  that  the  corn  ran  of  itself  into  the 
sack,  had  committed  burglary  —  since  he  had  broken 
and  entered  in  the  spirit  of  the  law  though  there  was 
no  "  midnight  terror,  etc." 

Comment.  In  England  and  in  the  United  States  burglary 
has  been  clearly  defined  by  statute  and,  in  many  places, 
there  are  degrees  of  burglary.  It  is  quite  unnecessary 
to  compare  the  statutes  of  the  different  states  on  an 
offense  so  well  defined  as  burglary. 

"  There  is  little  in  legislation  that  is  original.  Legis- 
latures imitate  one  another.  One  may  number  on  his 
fingers  the  landmarks  of  legislation  in  common  law 
jurisdictions,  and  copies  or  adaptations  of  them  have  gone 
around  the  world."  Roscoe  Pound.  Do  we  need  a 
Philosophy  of  Law?     (Col.  Law  Rev.,  5:  343.) 

The  New  York  Penal  Code,  article  38,  defines  bur- 
glary in  three  degrees  and  gives  the  penalties  therefor. 

First  degree  —  "A  person  who,  with  intent  to  com- 
mit some  crime  therein,  breaks  and  enters,  in  the  night 
time,  the  dwelling  house  of  another,  in  which  there 
is  at  the  time  a  human  being. 


DIRECTLY    AFFECTING    THE    PERSON    183 

1  Being  armed  with  a  dangerous  weapon ;  or 

2  Arming  himself  therein  with  such  a  weapon;  or 

3  Being  assisted  by  a  confederate  actually  present ; 
or 

4  Who,  while  engaged  in  the  night  time  in  effecting 
such  entrance,  or  in  committing  any  crime  in 
such  a  building,  or  in  escaping  therefrom,  assaults 
any  person,  is  guilty  of  burglary  in  the  first 
degree." 

Punishment  —  imprisonment  in  a  State  Prison  for 
not  less  than  ten  years. 

Second  degree  —  "A  person  who,  with  intent  to 
commit  some  crime  therein,  breaks  and  enters  the 
dwelling  house  of  another,  in  which  there  is  a  human 
being,  under  circumstances  not  amounting  to  burglary 
in  the  first  degree,  is  guilty  of  burglary  in  the  second 
degree." 

Punishment  —  State  Prison  not  exceeding  ten  years. 

Third  degree  —  "A  person  who, 

1  with  intent  to  commit  a  crime  therein,  breaks  and 
enters  a  building,  or  a  room,  or  any  part  of  a  building; 
or 

2  being  in  any  building,  commits  a  crime  therein 
and  breaks  out  of  the  same,  is  guilty  of  burglary  in  the 
third  degree." 

Punishment  —  State  Prison  not  exceeding  five  years. 

Comment.  The  offense  of  burglary  being  clearly  defined, 
the  interest  and  instruction  lies  largely  in  the  way  in 
which  the  law  is  administered.    There  are  few  appeals 


184 


THE    PUBLIC    CONSCIENCE 


in  burglary  cases  and  the  records  of  courts  of  first  in- 
stance are  too  voluminous  to  be  searched.  And  it  would 
be  of  questionable  value  to  search  them.  The  same  thing 
may  be  said  of  larceny,  assaults  and  many  other  offenses 
and  is  not  repeated  under  those  headings.  I  have  before 
me  however  the  reports  of  the  Chief  Clerk  of  the  Dis- 
trict Attorney's  Office  in  New  York  City  for  the  years 
1912-15  inclusive  and  I  quote  from  them  certain  figures 
of  average  sentences. 


Males 

No. 

Term  o. 

f  Sentence 

Average  Term, 
Each  Person 

1912 

Years 

Months 

Years 

Months 

Burglary 

First  Degree 

2 

70 

35 

Second    " 

16 

100 

6 

3 

Third      " 

173 

612 

11 

3 

6 

1913 

1st 

2 

10 

^5 

2nd 

20 

132 

11 

6 

7 

3rd 

156 

527 

2 

3 

4 

1914 

1st 

3 

43 

14 

4 

2nd 

15 

91 

5 

6 

1 

3rd 

171 

547 

3 

2 

1915 

1st 

. . 

2nd 

12 

67 

2 

5 

7 

3rd 

188 

547 

5 

2 

10 

1  Note  that  the   minimum  term   is,   by  statute,   10  years, 
think  there  must  be  error  in  the  printing. 


DIRECTLY    AFFECTING    THE    PERSON    185 


Robbery 

REX  V.  FRANCIS 
King's  Bench,  1735 

(2  Strange,  1915.    Beale,  3d.  ed.  p.  731.) 

The  defendants  in  this  case  were  charged  with  high- 
way robbery  in  that  they  tricked  Samuel  Cox,  traveling 
on  horseback  to  Somerton  Fair,  into  producing  money 
under  the  pretense  of  changing  some  for  them.  One 
of  them  then  gently  struck  his  hand  and  the  money 
rolled  on  the  ground.  When  Cox  tried  to  take  up  the 
money  they  swore  that  if  he  touched  the  gold  they 
would  knock  his  brains  out.  "  Whereby  he  was  then 
and  there  put  in  bodily  fear  of  his  life,  and  then  and 
there  desisted  from  taking  up  the  pieces  of  gold."  The 
prisoners  then  took  up  the  money  and  rode  off.  Cox 
pursued  them  for  about  half  a  mile  but  they  struck 
him  and  his  horse  and  swore  that  if  he  pursued  them 
any  further,  they  would  kill  him.    He  then  desisted. 

This  was  accounted  robbery  and  the  prisoners  con- 
victed accordingly. 

Boston  Paper  —  Probably  November,  1913. 

John  H.,  the  18-year-old  youth  who  with  15-year-old 
John  L.,  held  up  and  robbed  William  C,  the  proprie- 
tor of  a  tea  store  at  43  Washington  Street  of  $67.70, 
on  the  evening  of  October  23d,  was  sentenced  to  five 


186  THE    PUBLIC    CONSCIENCE 

years  and  one  day  at  the  Concord  reformatory.  L. 
was  sent  to  the  Shirley  School. 

H.  returned  to  his  home  soon  after  the  robbery  and, 
when  questioned  by  his  mother  about  the  amount  of 
money  he  had,  broke  down  and  confessed.  She  took 
the  boy  to  the  municipal  court  the  next  morning  and 
turned  him  over  to  Sergt.  Tom  O'Donnell.  Restitu- 
tion was  made. 

According  to  C.'s  story,  as  told  by  O'Donnell,  the 
tea  store  proprietor  was  counting  his  money  when  H., 
pointing  a  revolver  at  him,  ordered  him  to  hold  up  his 
hands.  When  he  reached  for  his  gun,  he  said  that  H. 
cried:  "  Don't  do  that;  we're  bandits.  Pass  over  that 
money."  L.,  who  is  large  for  his  age,  bound  and  gagged 
the  only  clerk  in  the  store,  according  to  C.'s  story,  and 
after  securing  the  proprietor's  revolver  backed  out  of 
the  store  with  H.,  the  revolver  covering  C. 

Arson 

(1  Hale  P.  C.  569.    Beale,  3d.  ed.  p.  133.) 

"Arson  must  be  a  wilful  and  malicious  burning, 
otherwise  it  is  not  a  felony,  but  only  a  trespass;  and 
therefore  if  A.  shoot  unlawfully  in  a  hand-gun,  suppose 
it  to  be  at  the  cattle  or  poultry  of  B.  and  the  fire 
thereof  sets  another's  house  on  fire,  this  is  not  felony, 
for  though  the  act  he  was  doing  was  unlawful,  yet  he 
had  no  intention  to  burn  the  house  thereby.  .  .  .  But 
if  A.  have  a  malicious  intent  to  burn  the  house  of  B. 
and  in  setting  fire  to  it  burns  the  house  of  B.  and  C. 


DIRECTLY    AFFECTING    THE    PERSON    187 

or  the  house  of  B.  escapes  by  some  accident,  and  the 
fire  takes  in  the  house  of  C.  and  burneth  it,  though  A. 
did  not  intend  to  burn  the  house  of  C,  yet  in  law  it 
shall  be  said  the  malicious  and  wilful  burning  of  the 
house  of  C.  and  he  may  be  indicted  for  the  malicious 
and  wilful  burning  of  the  house  of  C." 

Comment.  It  would  be  interesting  and  valuable  to  com- 
pare the  punishments  assigned  in  actual  cases  for  this 
more  or  less  unintentional  arson  as  compared  with  the 
malicious  and  wilful  arson;  but  there  are  no  statistics 
to  be  had. 


(Quoted  from  Beale.) 

1  Hawk.  P.  C.  ch.  18,  Sects.  1,  2 

"Arson  is  a  felony  at  common  law,  in  maliciously  and 
voluntarily  burning  the  house  of  another  by  night  or 
by  day. 

"  Not  only  a  mansion  house,  and  the  principal  parts 
thereof,  but  also  any  other  house,  and  the  out-buildings, 
as  barns  and  stables,  adjoining  thereto,  and  also  barns 
full  of  corn,  whether  they  be  adjoining  to  any  house 
or  not,  are  so  far  secured  by  law,  that  the  malicious 
burning  of  them  is  arson,  and  it  is  said,  that  in  an  in- 
dictment they  are  well  expressed  by  the  word  domus, 
without  adding  mansionalis. 

"  But  it  seems  that  at  this  day  the  burning  of  the 
frame  of  a  house  or  of  a  stack  of  corn,  etc.,  is  not 
accounted  arson,  because  it  cannot  come  under  the 


188  THE    PUBLIC    CONSCIENCE 

word  domus,  which  seems  at  present  to  be  necessary 
in  every  indictment  of  arson,  yet  it  is  said  that 
anciently  the  burning  a  stack  of  corn  was  accounted 
arson." 


HOLMES'S   CASE 
King's  Bench,  1634 

(Reported  Croke  Car.  376.    Beale,  3d.  ed.  p.  833.) 

Wilham  Holmes  was  indicted  for  the  burning  of  a 
house  which  he  was  occupying  under  a  long  lease.  He 
was  found  guilty  at  Newgate;  but  before  judgment  his 
case  was  referred  to  the  court  of  King's  Bench.  Rich- 
ardson, C.  J.,  Jones  and  Berkley,  JJ.,  held  that  it  was 
not  felony  for  him  to  burn  his  own  house.  Britton, 
Bracton  and  other  authorities  held  that  the  burning 
of  houses  is  not  felony  unless  they  belong  to  another. 
The  indictment  had  charged  him  with  feloniously, 
voluntarily  and  maliciously  attempting  to  burn  adja- 
cent houses.  —  Yet  intent  only  without  fact  is  not 
felony. 

An  apparently  dissenting  opinion  is  given  which 
holds  that  this  was  a  felony  because  it  is  a  "  capital 
crime,  perpetrated  with  felonious  mind  "  which  is  the 
definition  of  a  felony  in  Co.  Lit.  391,  a.  He  also  holds 
that  it  is  not  accidental  but  malicious.  Also  the  burn- 
ing of  his  house  in  a  street  of  the  city  adjoining  to  the 
houses  of  others,  is  to  the  endangering  of  the  city,  and 
therefore  ought  to  be  construed  to  be  felony;  but  so 


DIRECTLY    AFFECTING    THE    PERSON    189 

peradventure  is  not  the  burning  of  his  house  in  the 
fields.  And  whereas  it  was  said,  that  the  intention  here 
is  coupled  with  an  act  of  burning,  and  with  the  intend- 
ment of  an  act  which  is  felony,  .  .  .  Also  every  in- 
dictment is  vi  et  armis  et  contra  pacem,  where  an  act 
is  done  against  the  commonwealth;  so  it  is  where  a 
servant  runs  away  with  goods  committed  to  his  trust 
above  forty  shillings,  although  it  cannot  be  said  to 
be  vi  et  armis,  because  they  were  in  his  custody.  And 
in  this  case  the  ill  consequence  which  might  have 
fallen  out  by  this  act  makes  the  offense  the  greater; 
and  the  Year  Books  (cited)  put  the  case  of  burning 
houses  generally,  and  not  of  the  burning  of  other  men's 
houses;  and  it  is  an  equal  mischief  in  a  commonwealth 
to  burn  his  own  in  a  city  or  village  as  to  burn  the 
houses  of  others,  for  the  danger  which  may  ensue. 

But  the  other  three  Justices  resolved  ut  supra,  that 
it  was  not  felony ;  wherefore  he  was  discharged  thereof. 

But  because  it  was  an  exorbitant  offense,  and  found, 
they  ordered  that  he  should  be  fined  £500  to  the  King, 
and  imprisoned  during  the  King's  pleasure,  and  should 
stand  upon  the  pillory,  with  a  paper  upon  the  head 
signifying  the  offense,  at  Westminster  and  at  Cheap- 
side,  upon  the  market-day,  and  in  the  place  where  he 
committed  the  offense,  and  should  be  bound  with  good 
sureties  to  his  good  behaviour  during  life. 

Ency.  Brit.,  11th  ed.,  article  Arson. 

According  to  the  Malicious  Damage  Act  (Great 
Britain,  1861)  the  following  crimes  are  made  felonies: 


190  THE    PUBLIC    CONSCIENCE 

(1)  Setting  fire  to  any  church,  chapel,  meetmg  house 
or  other  place  of  divine  worship;  (2)  Setting  fire  to  a 
dwelling  house,  any  person  being  therein;  (3)  Setting 
fire  to  a  house,  outhouse,  manufactory,  farm  building, 
etc.,  with  intent  to  impose  and  defraud  any  person ;  (4) 
Setting  fire  to  buildings  appertaining  to  any  railway, 
port,  dock  or  harbor;  or  (5)  Setting  fire  to  any  public 
building. 

Punishment  may  be  penal  servitude  for  life  but  less 
punishments  are  permitted. 

In  New  York  one  who  wilfully  burns  property  (in- 
cluding a  vessel  or  its  cargo)  with  intent  to  defraud 
or  prejudice  the  insurer  thereof,  though  the  offense  of 
arson  is  not  committed,  is  punishable  by  imprisonment 
for  not  more  than  five  years  (N.  Y.  Pen.  Code,  ss.  575, 
578).  There  must  be  an  intent  to  destroy  the  building 
(ibid.  s.  490;  California  Code,  s.  447).  An  agreement 
to  commit  arson  is  conspiracy  (ibid.  s.  171).  Killing  a 
person  in  committing  the  crime  of  arson  is  murder  in 
the  first  degree  (ibid.  s.  183) ;  this  is  so  in  California, 
even  where  the  crime  is  merely  an  attempt  to  commit 
arson  (Calif.  Pen.  Code,  s.  189).  Explosion  of  a  house 
by  gunpowder  or  dynamite  is  arson  (Texas  Pen.  Code, 
art.  761),  but  a  charge  of  arson  by  burning  will  not  be 
sustained  by  proof  of  exploding  by  dynamite,  even 
though  part  of  the  building  is  burnt  by  the  explosion 
(Landers  v.  State  (Tex),  47  S.  W.  1008). 


DIRECTLY    AFFECTING    THE    PERSON    191 

Larceny 

(Defined  in  Penal  Law  of  New  York,  Article   122,  Sec.  1290, 
Birdseye's  Consol.  Laws.) 

A  person  who,  with  the  intent  to  deprive  or  defraud 
the  true  owner  of  his  property,  or  of  the  use  and  benefit 
thereof,  or  to  appropriate  the  same  to  the  use  of  the 
taker,  or  of  any  other  person :  — 

1  Takes  from  the  possession  of  the  true  owner,  or 
of  any  other  person;  or  obtains  from  such  possession 
by  color  or  aid  of  fraudulent  or  false  representation  or 
pretense,  or  of  any  false  token  or  writing;  or  secretes, 
withholds,  or  appropriates  to  his  own  use,  or  that  of 
any  other  person  other  than  the  true  owner,  any  money, 
personal  property,  thing  in  action,  evidence  of  debt 
or  contract,  or  article  of  value  of  any  kind ;  or 

2  Having  in  his  possession,  custody,  or  control,  as 
a  bailee,  servant,  attorney,  agent,  clerk,  trustee,  or 
ofl5cer  of  any  person,  association,  or  corporation,  or  as 
a  public  officer,  or  as  a  person  authorized  by  agreement, 
or  by  competent  authority,  to  take  or  hold  such  pos- 
session, custody  or  control,  any  money,  property,  evi- 
dence of  debt  or  contract,  article  of  value  of  any  nature, 
or  thing  in  action  or  possession,  appropriates  the  same 
to  his  own  use,  or  that  of  any  other  person  other  than 
the  true  owner  or  person  entitled  to  the  benefit  thereof. 

Steals  such  property,  and  is  guilty  of  larceny. 


192  THE    PUBLIC    CONSCIENCE 

Larceny 

Bracton,  De  Legibus,  150  b.  —  Larceny  is,  according 
to  the  law,  the  fraudulent  taking  of  the  property  of 
another,  with  intent  to  steal,  against  the  will  of  the 
owner. 

It  has  been  held^  that  a  forester  is  not  guilty  of 
larceny,  whatever  his  offense  may  be,  in  cutting  down 
trees  on  property  of  which  he  was  the  keeper  (1338). 
Wild  animals  cannot  be  stolen  because  they  are  no 
man's  property  until  taken,  but  "  peacocks  are  com- 
monly of  the  same  nature  as  hens  or  capons,  etc.,  and 
the  owner  has  property  in  them"  (1528).  Ferrets, 
though  tame  and  salable,  were  considered  of  so  base  a 
nature  that  they  could  not  be  the  subject  of  larceny 
(1818).  Pigeons  are  (1851).  A  piece  of  paper,  being 
an  unstamped  agreement  between  two  parties,  was 
taken  by  one  of  them  to  his  own  advantage.  It  was 
ruled  that  it  could  not  be  the  subject  of  larceny,  be- 
cause it  was  an  agreement  of  a  kind  which,  if  stamped, 
would  have  been  called  a  "  chose  in  action  "  or  rather 
evidence  of  such  a  thing.  And  the  court  held  that, 
even  unstamped,  it  was  essentially  the  same  thing. 
The  common  law  rule  was  that  "  for  a  chose  in  action 
larceny  cannot  be  supported."  This  is  a  clear  case 
where  theft  undeniable  is  counted  not  to  be  larceny  for 
purely  technical  reasons  (1854).  Tame  partridges, 
hatched  and  reared  by  a  common  hen  were  taken 

1  Cf.   cases   under   Larceny,    Beale's   Cases    on    Criminal    Law, 
p.  696  ff.    Dates  are  quoted  to  show  the  progress  of  legal  decisions. 


DIRECTLY    AFFECTING    THE    FERSON    193 

animo  jurandi  and  their  taking  was  held  to  be  larceny, 
because  "  from  their  inability  to  escape  (they  were 
three  weeks  old  and  could  fly  a  little)  they  were  prac- 
tically in  the  power  and  dominion  of  the  prosecutor." 
In  Mullaby  v.  People,  New  York,  1881  (Beale,  p. 
710)  concerning  the  steaUng  of  a  dog,  the  prisoner's 
counsel  contended  that  stealing  a  dog  is  not  larceny. 
At  common  law,  his  contention  was  just,  though  dogs 
were  regarded  as  property.  Erie,  J.  says  "  The  com- 
mon law  rule  was  extremely  technical,  and  can  scarcely 
be  said  to  have  had  a  sound  basis  to  rest  on.  .  .  .  In 
the  reign  of  William  I  it  was  made  grand  larceny  to 
steal  a  chattel  valued  at  twelve  pence  and  upwards, 
and  grand  larceny  was  punishable  by  death,  and  one 
reason  hinted  at  by  Lord  Coke  for  holding  that  it  was 
not  larceny  to  steal  dogs  was  that  it  was  not  fit  that 
*  a  person  should  die  for  them ;  '  and  yet  those  ancient 
law  givers  thought  it  not  unfit  that  a  person  should  die 
for  stealing  a  tame  hawk  or  falcon.  ...  If  the  com- 
mon-law rule  referred  to  ever  prevailed  in  this  State 
no  doubt  it  has  been  changed  by  legislation.  It  is 
provided  in  2  R.  S.  690,  Sec.  1,  that  every  person  who 
shall  be  convicted  of  stealing  '  the  personal  property ' 
of  another,  of  the  value  of  $25.00  or  under  shall  be  ad- 
judged guilty  of  petit  larceny  —  personal  property  is 
defined  to  mean  '  goods,  chattels,  effects,  evidences  of 
rights  of  action '  ^  and  certain  written  instruments. 
This  definition  of  personal  property  is  certainly  com- 
prehensive enough  to  include  dogs.    We  think  it  was 

1  Cf.  with  the  case  referred  to  above  in  1854. 


194.  THE    PUBLIC    CONSCIENCE 

intended  to  be  taken  literally,  and  that  the  law-makers 
meant  to  make  it  the  crime  of  larceny  to  steal  any 
chattel  which  had  value  and  was  recognized  by  the  law 
as  property." 

Larceny  of  Electricity 

Daily  Paper  —  New  York,  December  llth,  1911. 

A  jury  verdict  of  $400  was  returned  yesterday  before 
Judge  Finelite  in  the  City  Court  in  favor  of  Herman 
Cordes,  a  confectioner  of  524  Columbus  Avenue, 
against  Charles  O'Connor,  an  electrician. 

The  suit  was  brought  to  recover  for  electricity  used 
by  O'Connor,  who  is  alleged  to  have  tapped  the  wire 
leading  from  the  meter  of  Cordes  in  the  basement  of 
their  adjoining  establishments.  The  verdict  was  based 
on  the  increase  in  Cordes's  electrical  bills  since  1910. 
Judge  Finelite  said  that  the  case  was  the  j&rst  of  its 
kind  on  record. 

Comment.  This  is  notable  merely  as  an  intelligent  appre- 
ciation of  the  fundamental  nature  of  private  property; 
there  is  no  other  question  involved. 


IL  .LARCENY    UNDER    PECULIAR    CON- 
DITIONS   OF   FRONTIER   LIFE 

The  codes  of  such  states  and  territories  as  Arizona, 
New  Mexico,  Texas,  Montana  and  Alaska  are  espe- 
cially severe  on  the  theft  of  animals  whose  value  in 


LARCENY    IN    FRONTIER    LIFE  195 

more  settled  parts  of  the  country  would  be  less  great 
not  only  in  money  but  in  the  needs  of  the  people. 

In  Texas,  driving  stock  to  market  without  a  bill  of 
sale,  fine  not  to  exceed  $2,000.  Butchering  unmarked 
animals,  fine  $50  to  $300.  Wilfully  driving  stock  from 
range,  confinement  in  the  penitentiary  for  not  less 
than  two  or  more  than  five  years  or  fine  of  not  more 
than  one  thousand  dollars  or  both.    (1886). 

In  1858  article  881  of  the  Texas  Penal  Code  read: 
"  If  any  person  shall  steal  any  horse,  ass  or  mule,  he 
shall  be  punished  by  confinement  in  the  penitentiary 
not  less  than  five  nor  more  than  fifteen  years."  Sec- 
tion 1923  of  the  Alaska  code  says:  *' If  any  person 
shall  commit  the  crime  of  larceny  by  stealing  any  horse, 
gelding,  mare,  ass,  .  .  .  cow,  calf,  reindeer,  such  person, 
upon  conviction,  shall  be  punished  by  imprisonment 
in  the  penitentiary  not  less  than  one  nor  more  than 
fifteen  years." 

Altering  marks  upon  animals  is  larceny. 

Imprisonment  one  to  five  years. 

Arizona  —  Grand  larceny  is  committed  when  any 
stock  animal  is  stolen.  It  is  punishable  by  imprison- 
ment for  not  less  than  one  nor  more  than  ten  years. 

Driving  stock  off  a  range  is  a  felony. 

In  New  Mexico  unlawful  branding  is  punished  with 
from  one  to  five  years  in  the  penitentiary  and  a  fine 
of  three  times  the  value  of  the  animal. 

All  cases  of  larceny  and  in  all  cases  of  felonious  tak- 
ing, stealing,  riding,  driving  away,  etc.,  of  any  animal 
or  animals  is  grand  larceny  and  punishable  with  im- 


196  THE    PUBLIC    CONSCIENCE 

prisonment  of  not  less  than  one  nor  more  than  ten 
years  even  should  the  value  of  the  animal  be  less  than 
twenty  dollars. 

New  Mex.  Code  1915,  sec.  1614,  provides  that  the 
theft  of  stock  animals  be  regarded  as  grand  larceny 
regardless  of  their  value.  A  penalty  of  not  less  than 
one  year  nor  more  than  ten  years  in  the  penitentiary 
is  imposed. 

Judge  Crumpacker  (in  Wilburn  v.  Territory,  1900) 
says:  "  The  object  of  .  .  .  the  act  was  not  to  prevent 
larceny  in  general,  but  to  protect  the  ownership  of  a 
certain  class  of  property,  its  title  being  'An  act  for  the 
protection  of  livestock  and  other  purposes,'  and  per- 
taining to  no  other  subject  than  livestock.  We  suppose 
that  in  the  opinion  of  the  Legislature  the  (earlier)  act 
was  needed  either  to  prevent  a  kind  of  theft  peculiarly 
easy  of  commission  and  diflBcult  of  discovery  and  pun- 
ishment, or  else  to  afford  special  protection  to  the 
important  industry  of  stockraising,  etc." 

III.    FRAUDS,    VICTIMS    DECEIVED 

Swindling 

CLARK  V.  STATE 

Court  of  Criminal  Appeals  of  Texas,  1904 

(Reported  81  Southwestern  Reporter,  722.) 

In  a  case  where  there  was  a  conflict  between  the 
Penal  Code,  the  general  regulations  of  the  municipality 
of  El  Paso  on  the  subject  of  gambling  and  an  express 


FRAUDS,    VICTIMS    DECEIVED  197 

municipal  ordinance  punishing  bunco  games  very 
severely,  Davidson,  P.  J.  said:  "All  parties  engaged 
in  a  gambling  transaction,  whether  under  the  gaming 
laws  or  under  the  bunco-business  ordinance,  would  be 
guilty  of  violating  the  gaming  laws  of  the  state.  If 
the  bunco  business  was  carried  on  in  such  manner  that 
it  was  a  swindling  operation,  and  for  the  purpose  of 
getting  the  money  of  the  bettor  by  means  of  loaded 
dice  or  other  contrivances  by  which  the  bettor  would 
not  have  the  ordinary  chances  in  gambling,  he  would 
be  guilty  of  theft.  ...  He  could  be  punished  by  im- 
prisonment in  the  penitentiary  if  the  amount  of  money 
obtained  was  $50  or  more,  or  as  a  misdemeanor  if  less 
than  $50." 

Insurance  Fraud 

New  York  Times, 1913. 

Louis  M ,  President  of  the  M Company, 

lace  and  embroidery  importers,  of  14  West  Twenty- 
first  Street,  was  sentenced  by  Justice  Gavegan  in  the 
Criminal  Branch  of  the  Supreme  Court  to  not  less 
than  two  nor  more  than  three  years  and  six  months 
in  Sing  Sing  Prison  for  filing  a  false  proof  of  loss  by 
fire. 

M ,  who  was  convicted  a  week  ago,  said  he 

had  suffered  a  loss  of  $145,600  in  a  fire  on  April  12th. 
Investigation  disclosed  that  he  had  disposed  of  $60,000 
worth  of  goods  before  the  fire. 


198  THE    PUBLIC    CONSCIENCE 

Cheating 

REGINA  V.  HUDSON 

Crown  Case  Reserved,  1860 

(Reported  8  Cax,  C.  C.  305.    Beale,  218  3d  ed.) 

Charge,  conspiracy  to  cheat.  This  was  a  common 
enough  case  of  trickery,  placing  an  object  by  sleight 
of  hand  in  a  place  different  from  that  where  it  ap- 
peared to  go  and  betting  on  the  result.  The  prisoner 
was  equally  guilty  in  desiring  to  cheat  the  cheaters; 
but  the  trial  court  found  the  prisoners  guilty  of  con- 
spiracy to  cheat  by  false  pretences.  Price,  for  the 
prisoners  said:  "At  the  trial  the  present  case  was 
likened  to  that  of  Rex  v.  Barnard,  where  a  person  at 
Oxford  who  was  not  a  member  of  the  University,  went 
for  the  purpose  of  fraud,  wearing  a  commoner's  gown 
and  cap,  and  obtained  goods.  This  was  held  a  suflS- 
cient  false  pretence.  The  present  case,  however,  was 
nothing  more  than  a  bet  on  a  question  of  fact,  which 
the  prosecutor  might  have  satisfied  himself  of  by  look- 
ing at  the  pencil  case.  It  is  more  like  an  ordinary  con- 
juring trick." 

Pollock,  C.  B.  "  .  .  .  It  is  not  necessary  that  the 
words  '  false  pretences '.  .  .  should  be  understood  in 
the  technical  sense  contended  for  by  Mr.  Price.  There 
is  abundant  evidence  of  a  conspiracy  by  the  prisoners 
to  cheat  the  prosecutor,  and  though  one  of  the  ingredi- 
ents in  the  case  is  that  the  prosecutor  himself  intended 
to  cheat  one  of  the  prisoners,  that  does  not  prevent 
the  prisoners  from  liability  to  be  prosecuted  upon  this 
indictment."    (Conviction  affirmed). 


FRAUDS,    VICTIMS    DECEIVED  199 


False  Pretences 
OHIO  V.  HORTON 

(Student  Report.) 

John  Horton  was  paid  $65.00  to  deliver  $3,000.00  in 
counterfeit  money.  He  did  not  deliver  it.  The 
Supreme  Court  held  that  an  agreement  to  deliver 
counterfeit  money  to  a  man  was  an  agreement  to 
deliver  "  nothing  "  to  him.  Therefore,  since  Horton 
agreed  to  deliver  "  nothing,"  and  in  actuality  did  de- 
liver nothing  at  all,  he  could  not  be  prosecuted  under 
false  pretences. 

Inasmuch  as  it  could  not  be  proved  that  he  ever  had 
in  his  possession  the  counterfeit  which  he  agreed  to 
deliver,  he  was  not  liable  for  counterfeiting  or  for 
passing  bad  money. 

Comment.  This  is  a  very  curious  instance  of  the  deleteri- 
ous effect  of  metaphysics  upon  the  common  sense  of  a 
court.  The  "  concept  of  nothing  "  was  never  in  more 
flagrant  case.  The  counterfeit  money  was  indeed  not 
legal  tender;  but  it  was  a  commodity  in  which,  unfor- 
tunately, there  has  been  considerable  traffic.  One  would 
not  perhaps  wish  to  see  the  person  who  trusted  him  re- 
cover. Where  both  sides  to  a  controversy  are  criminal, 
it  matters  little  to  society  that  one  of  them  should  get 
the  better  of  the  other,  but  it  would  be  a  little  more  re- 
assuring to  think  that  our  courts  were  less  governed  by 
bad  metaphysics  than  the  present  instance  would  indi- 
cate. 


200  TPIE    PUBLIC    CONSCIENCE 

The  finer  distinctions  between  crimes  are  always  made 
through  metaphysical  analysis  whether  the  judges  are 
aware  of  it  or  not.  In  this  case  their  subtlety  is  a  little 
too  absurd. 

Here  no  unit  of  government  was  threatened  by  Hor- 
ton's  act.  There  was  no  entity  to  feel  offended  and  act 
of  itself;  but  the  state  is  threatened  by  the  presence  of 
cheats  of  any  kind. 

Daily  Paper. 

The  following  advertisement  has  appeared  from  time 
to  time  in  many  reputable  papers: 

"A  genuine  steel  engraving  of  George  Washington 
will  be  sent  postpaid  to  any  address  on  receipt  of  25 
cents.  The  engraving  is  perfectly  made  on  first  quality 
paper  and  is  suitable  for  framing.    Address  .  .  ." 

When  the  advertiser  opened  his  first  mail  after  the 
insertion  of  the  above  advertisement,  he  found  that 
more  than  $8,000  had  been  sent  in.  The  people  who 
had  made  the  remittances  soon  received  one  cent 
stamps  in  return  for  their  money. 

The  advertiser  on  one  occasion  was  indicted  for 
fraudulent  use  of  the  mails.  He  was  acquitted  because 
his  advertisement  had  not  misrepresented  the  facts  in 
any  way. 


APPROPRIATION    BY    COMPULSION       201 


IV.    APPROPRIATION    BY    COMPULSION  — 
NOT    PHYSICAL 

Extortion 

REX  V.  SEYMOUR 
King's  Bench,  1740 

(Reported  7  Mod.  382.    Beale  49  3d  ed.) 

Extortion  was  proven  against  one  Seymour  and  three 
justices  of  the  corporation  of  Colchester  in  the  matter 
of  licenses  for  public  houses.  It  was  their  habit  to 
make  all  foreigners  pay  ten  shillings  on  pain  of  having 
their  licenses  refused,  the  usual  fee  being  but  one 
shilling. 

Power  to  issue  licenses  lay  in  the  hands  of  the  jus- 
tices. They  claimed  that  the  practice  of  requiring 
foreigners  to  pay  more  for  their  licenses,  though  con- 
trary to  law,  had  continued  for  twenty-five  years  and 
that  the  money  was  not  appropriated  by  them  per- 
sonally but  was  devoted  to  the  good  of  the  corporation 
of  Colchester. 

The  Court  held  them  to  have  been  guilty  of  a  breach 
of  trust  and  fined  them  one  hundred  pounds  each. 
Seymour,  the  agent  of  the  justices,  was  fined  one 
hundred  and  twenty  pounds,  forty  pounds  on  each 
information. 


202  THE    PUBLIC    CONSCIENCE 

Usury 

New  York  Times,  1914. 

The  Appellate  Division  (of  the  Supreme  Court) 
unanimously  dismissed  Daniel  M.  T.'s  appeal  from 
conviction  and  sentence  to  serve  six  months  in  the 
Blackwell's  Island  Penitentiary,  the  result  of  a  trial 
in  the  Court  of  Special  Sessions. 

T.  was  one  of  the  most  widely  known  salary  loan 
brokers  in  the  world.  He  had  offices  in  sixty-three 
American  and  Canadian  cities  and  formerly  had 
operated  abroad.  He  had  not  personally  participated 
in  the  transaction.  As  is  customary  in  this  business, 
a  woman  employed  in  the  broker's  office  conducted  all 
the  negotiations  with  the  victim.  Women  are  em- 
ployed because  courts  are  reluctant  to  convict  them 
and  because  to  be  dunned  by  a  woman  is  more  embar- 
rassing and  may  lead  to  domestic  complications. 

The  particular  offense  was  charging  $15.00  to  repay 
a  loan  of  $10.00,  twelve  monthly  payments  of  $1.25 
each  being  required,  and  a  note  to  make  the  amount 
secure. 

Blackmail 
DEFINITION   AND   PUNISHMENT 

Sec.  856,  N.  Y.  Penal  Code 

"A  person,  who  knowing  the  contents  thereof,  to  ex- 
tort or  gain  any  money  or  other  property,  or  to  do, 
abet,  or  procure  any  illegal  or  wrongful  act,  sends,  de- 


APPROPRIATION    BY    COMPULSION       203 

livers,  or  in  any  manner,  causes  to  be  forwarded  or  re- 
ceived, or  makes  and  parts  with  for  the  purpose  that 
there  may  be  sent  or  delivered  any  letter  or  writing 
threatening : 

1  To  accuse  any  person  of  a  crime;  or, 

2  To  do  any  injury  to  any  person  or  to  any  prop- 
erty;  or 

3  To  publish  or  continue  at  publishing  any  libel; 
or 

4  To  expose  or  impute  to  any  person  any  deformity 
or  disgrace. 

Is  punishable  by  imprisonment  for  not  more  than 
fifteen  years." 

In  People  v.  Thompson,  97  N.  Y.  313  —  The  defend- 
ant, an  attorney,  appeared  for  the  complainant  on  the 
examination  of  J.,  arrested  on  a  warrant  issued  by  a 
justice  of  the  peace.  J.  was  discharged.  Afterwards 
defendant  wrote  a  letter  to  C,  the  father  of  J.,  repre- 
senting that  he  was  a  deputy  district  attorney.  The 
letter  purported  to  come  from  the  district  attorney's 
office.  It  stated  that  there  was  immediate  danger  of  a 
movement  to  indict  J.  and  that  the  writer  had  power 
to  arrest  the  matter,  that  he  had  talked  with  the  dis- 
trict attorney  and  had  thus  far  managed  to  kill  the 
movement  —  That  he  would  like  to  make  the  district 
attorney  a  present,  and  asked  C.  to  send  him  $75.00, 
adding:  "This  will  save  you  and  your  folks  some 
trouble  and  expense  as  well  as  the  stink."  There  was 
no  complaint  whatever  before  the  district  attorney 
against  J.  Court  held  that  a  conviction  of  blackmail- 
ing was  warranted. 


204  THE    PUBLIC    CONSCIENCE 

A  conviction  was  sustained  under  this  section  in 
the  case  of  People  v.  Triscalli  (1907),  117  App.  Div. 
(N.  Y.)  120,  where  the  complaining  witness  had  re- 
ceived two  "  Black  Hand  "  letters  demanding  payment 
of  $500  in  default  of  which  he  and  his  family  would  be 
destroyed.  The  complainant  also  testified  that  the  de- 
fendant had  called  upon  him  and  demanded  the  money 
in  compliance  with  the  letters. 

In  People  v.  Wicks  (1906)  112  App.  Div.  (N.  Y.) 
39,  a  conviction  was  affirmed,  where  the  defendant,  an 
attorney  at  law,  knowing  the  contents  of  a  letter  sent 
by  him  to  compel  the  settlement  of  a  civil  action, 
which  threatened  to  accuse  the  recipient  of  perjury, 
had  sent  it  with  an  intent  to  extort  or  gain  money. 

Sec.  857  of  the  N.  Y.  Penal  Code  provides  —  "A  per- 
son, who,  under  circumstances  not  amounting  to  rob- 
bery, or  an  attempt  at  robbery,  with  the  intent  to  ex- 
tort or  to  gain  any  money  or  other  property,  orally 
makes  such  a  threat  as  would  be  criminal  under  any 
of  the  foregoing  sections  of  this  article  or  under  sec- 
tion 551,  if  made  or  communicated  in  writing,  is  guilty 
of  a  misdemeanor." 

Sec.  551  provides:  "A  person,  who,  knowing  the 
contents  thereof,  sends,  delivers,  or  in  any  manner 
causes  to  be  sent  or  received  any  letter  or  other  writing, 
threatening  to  do  any  unlawful  injury,  to  the  person 
or  property  of  another,  or  any  person  who  shall  know- 
ingly send  or  deliver  or  shall  make  and  for  the  purpose 
of  being  delivered  or  sent,  shall  part  with  the  pos- 
session of  any  letter,  postal  card  or  writing,  with  or 


BREACHES    OF    TRUST  205 

without  a  name  subscribed  thereto,  or  signed  with  a 
fictitious  name,  or  with  any  letter,  mark  or  other  desig- 
nation, with  the  intent  thereby  to  cause  annoyance  to 
any  person  is  guilty  of  a  misdemeanor." 


V.    BREACHES    OF    TRUST 
Embezzlement 

REGINA  V.  BARNES 

Devizes  Assize,  1858 

(Reported  8  Cax,  C.  C.  129.    Beale,  3d  ed.  742.) 

The  prisoner  was  a  coal  and  timber  merchant,  who 
fell  into  diflBculties  and  made  an  assignment  of  all  his 
goods,  effects  and  book  debts.  After  his  assignment, 
he  received  two  sums  of  money,  £68  10s.  and  £29  9s. 
7d.,  which  had  been  debts  previously  to  him  and  he 
did  not  account  for  the  receipt  of  those  sums.  After 
the  execution  of  the  deed  of  assignment  the  prisoner 
had  been  employed  by  the  trustees,  at  a  salary,  to  con- 
duct the  business  for  the  benefit  of  the  trustees. 

It  was  contended  by  his  counsel  that  this  money  was 
his  of  right  —  he  received  his  own  money.  The  prose- 
cutors held  that  immediately  on  receipt  of  the  money 
it  became  the  property  of  the  trustees,  and  then  the 
prisoner  was  guilty  of  embezzlement. 

The  prisoner's  counsel  gave  a  definition  of  embezzle- 
ment as  the  stopping  of  money  in  transitu  to  the  em- 
ployer. If  rightly  received  by  the  prisoner  the  keep- 
ing of  it  afterwards  was  not  embezzlement. 


206  THE    PUBLIC    CONSCIENCE 

Byles,  J.  said,  the  diflBculty  was  to  make  out  the 
status  of  the  prisoner  before  the  law.  The  moment  he 
received  those  moneys,  they  were  his  own  moneys  — 
he  received  what  was,  in  point  of  law,  his  own  money. 
How  then  could  he  be  guilty  of  embezzlement ;  or  how 
could  he  be  said  to  be  clerk  or  servant  to  the  trustees? 
He  could  not,  in  point  of  law,  pass  the  property  in  the 
debts  due  to  him  before  the  deed  was  executed.  His 
assignees  were  only  equitable  assignees;  they  could 
only  sue  in  his  name.  The  deed  could  only  pass  that 
which  he  actually  had  in  his  possession  at  the  time 
the  deed  was  executed. 

(The  prisoner  was  therefore  acquitted.) 

Comment.  This  is  a  case  where  the  law's  ways  are  mysteri- 
ous to  the  layman.  If  book  debts  can  be  assigned  by  law, 
it  seems  very  strange  that  they  cannot  be  collected.  It 
is  plain  that  the  prisoner  expected  to  assign  such  sums 
and  that  the  trustees  expected  to  receive  them.  But  it 
seems  they  were  both  mistaken. 


COMMONWEALTH  v.  HAYS 
Supreme  Judicial  Court  of  Massachusetts,  1858 

(Reported  14  Gray,  62.  Beale,  3d  ed.  743.) 

The  indictment  was  on  St.  1857,  c.  233,  which  de- 
clares that  "  if  any  person,  to  whom  any  money,  goods, 
or  other  property,  which  may  be  the  subject  of  larceny, 
shall  have  been  delivered,  shall  embezzle  or  fraudu- 


BREACHES    OF    TRUST  207 

lently  convert  to  his  own  use,  or  shall  secrete,  with  in- 
tent to  embezzle  or  fraudulently  convert  to  his  own 
use,  such  money,  goods,  or  property  or  any  part  thereof, 
he  shall  be  deemed  by  so  doing,  to  have  committed 
the  crime  of  simple  larceny." 

The  facts  were  that  the  person  accused  presented 
a  deposit  book  to  the  Charlestown  Five  Cent  Sav- 
ings Bank,  the  amount  of  deposit  being  One  hundred 
and  thirty  dollars.  He  asked  for  his  money  and  the 
treasurer  paid  him  by  mistake  two  hundred  and  thirty 
dollars.  When  the  mistake  was  discovered,  the  man 
was  sought  and  found.  He  did  not  deny  the  facts  but 
maintained  the  bank  would  have  to  prove  that  he 
had  received  the  excess  money. 

The  court  instructed  the  jury  "  that  if  the  sum  of  two 
hundred  and  thirty  dollars  was  so  delivered  to  the  de- 
fendant, as  testified,  and  one  hundred  dollars,  parcel 
of  the  same,  was  so  delivered  by  mistake  of  the  treas- 
urer, as  testified,  and  the  defendant  knew  that  it  was 
so  delivered  by  mistake,  and  knew  he  was  not  entitled 
to  it,  and  afterwards  the  money  so  delivered  to  him  by 
mistake  was  demanded  of  him  by  the  treasurer,  and  the 
defendant,  having  such  knowledge,  did  fraudulently, 
and  with  a  felonious  intent  to  deprive  the  bank  of  its 
money,  convert  the  same  to  his  own  use,  he  would  be 
liable  under  this  indictment." 

The  jury  declared  him  guilty  —  but  he  alleged  ex- 
ceptions and  the  matter  came  before  the  Supreme 
Court. 

Bigelow,  J.,  speaking  of  the  statutes  relating  to  em- 


208  THE    PUBLIC    CONSCIENCE 

bezzlement,  said  that  they  were  designed  to  reach  and 
punish  persons  who  were  in  a  position  of  confidence 
toward  their  employers. 


Bankruptcy  —  Dishonest 
PARKER  V.  GODIN,  1728 

(Reported  in  2  Strange,  813.) 

Ames,  Cases  on  Torts,  p.  319. 

A  bankrupt  left  some  plate  in  his  wife's  possession. 
She,  in  order  to  raise  money  on  it,  delivered  it  to  her 
servant  who  went  with  the  defendant  (presumably 
Godin.  G.C.C.)  to  the  door  of  Mr.  Woodward,  the 
banker,  and  there  the  defendant  took  the  plate  into  his 
hands  and  went  into  the  shop  and  pawned  it  in  his 
own  name,  gave  his  own  note  to  repay  the  money  and 
immediately  upon  receipt  of  the  money  went  back  to 
the  bankrupt's  wife  and  delivered  the  money  to  her. 
And  when  suit  was  brought  to  recover  for  the  assignees 
of  the  bankrupt,  the  jury  found  a  verdict  for  the  de- 
fendant, considering  that  he  had  acted  only  as  a  friend 
and  that  it  would  be  hard  to  punish  him.  This  verdict 
was  afterwards  reversed. 

Comment.  The  significance  of  the  case  here  is  that  the 
bankrupt,  through  his  wife,  used  valuables  which  prop- 
erly belonged  to  his  assignees. 

Cf.  Perkins  v.  Smith  (Reported  in  Ames  at  the  same 
place)  where  one  Hughes  became  a  bankrupt.    The 


BREACHES    OF    TRUST  209 

assignee  sued  one  Smith  because  he,  the  servant  of 
Mr.  Garraway,  to  whom  the  bankrupt  was  consider- 
ably indebted,  received  goods  from  him,  and  sold  them 
for  his  master's  use.  The  action  here  concerned  the 
agency  of  Garraway.  It  has  nothing  to  do  with  our 
interest  which  is  met  by  the  statement  of  Lee,  C.  J. 
that  "  Hughes,  the  bankrupt,  had  no  right  to  deliver 
these  goods  to  Smith." 

Stephens  and  Others  v.  Elwall  (quoted  from  the 
same  place)  gives  another  case  of  a  bankrupt  who  sold 
goods  which  belonged  to  the  assignees. 

Comment.  In  none  of  these  cases  were  the  proceedings 
directed  against  the  defrauding  bankrupt  but  in  all  of 
them  he  is  plainly  held  to  have  committed  a  wrong. 
Doubtless  proceedings  were  brought  against  him  in  each 
case  as  well  as  against  the  defendants-  who  received  goods 
from  him. 

Fraudulent  Entry 

New  York  Times,  Nov.  23,  1913. 

After  a  trial  lasting  114  days,  Herr  Ohm,  Managing 
Director  of  the  Nieder  Deutsche  Bank,  which  failed 
with  liabilities  of  $12,000,000  on  July  27,  1910,  was 
sentenced  November  22nd  to  seven  years'  imprison- 
ment for  wrecking  the  institution  by  appropriating 
funds.  A  public  accountant,  Herr  Hartwig,  was  at  the 
same  time  sentenced  to  three  years'  imprisonment  and 
a  number  of  other  bank  employees  to  terms  of  from 
four  to  six  months  each. 

The  bank  had  been  started  some  years  ago  on  a  small 
capital  and  Ohm  appealed  to  the  poorer  classes  to  make 


210  THE    PUBLIC    CONSCIENCE 

deposits,  spurring  them  on  to  do  so  by  the  use  of  re- 
ligious quotations.  Later  on  the  capital  was  increased 
until  it  reached  $3,000,000. 

The  evidence  showed  that  Ohm  made  fraudulent 
entries  and  published  false  balance  sheets  to  cover  up 
the  bank's  condition. 

VI.     ATTACK  UPON  RIGHTS  OF  PROPERTY 
IN   PERSONALITY 

Libel  and  Slander 

Newell,  in  the  third  edition  of  his  work  on  "  Libel 
and  Slander  "  states  in  paragraph  25  of  Chapter  I, 
"  The  History  of  the  American  Law  of  Defamation 
must  always  be  identical  with  the  English  law." 

Libel  and  slander  is  a  violation  of  the  individual's 
right  to  reputation  and  Pollock  on  Torts  (7th  Ed.)  233 
speaks  of  it  in  these  words:  "Reputation  and  honor 
are  no  less  precious  to  good  men  than  bodily  safety 
and  freedom.  In  some  cases  they  may  be  dearer  than 
life  itself.  Thus  it  is  needful  for  the  peace  and  well 
being  of  a  civilized  commonwealth,  that  the  law  should 
protect  the  reputation  as  well  as  the  person  of  the 
citizen." 

F.  A.  Erwin,  in  the  second  edition  of  his  work  on 
Torts,  at  page  110,  defines  libel  and  slander  as  follows: 
"  When  defamation  is  accomplished  by  speech  or  its 
equivalent,  we  call  it  slander;  when  it  is  accomplished 
by  writing  or  its  equivalent  we  call  it  libel.  The 
former  is  a  civil  wrong  only;  the  latter  is  a  criminal 
as  well  as  a  civil  wrong." 


ATTACK  UPON  RIGHTS  OF  PROPERTY   211 

Statutory  definition  of  Libel  —  "A  malicious  publi- 
cation by  writing,  printing  pictures,  effigy,  sign  or 
otherwise  than  by  mere  speech,  which  exposes  any  liv- 
ing person,  or  the  memory  of  any  person  deceased  to 
hatred,  contempt,  ridicule  or  obloquy,  or  which  causes 
or  tends  to  cause  any  person  to  be  shunned  or  avoided, 
or  which  has  a  tendency  to  injure  any  person,  corpo- 
ration or  association  of  persons  in  his  or  their  business 
or  occupation  is  a  libel."  N.  Y.  Penal  Code,  Para- 
graph 242. 

In  the  case  of  Sorenson  v.  Balahan,  11  App.  Div. 
(N.  Y.)  164,  the  plaintiff  was  the  mother  of  an  un- 
married, deceased  infant  in  the  service  of  her  mother. 
The  defendant  was  a  physician  who  had  attended  the 
deceased  infant  in  her  last  illness.  The  action  was 
brought  on  two  causes  of  action.  The  first  charged  the 
defendant  with  mal-practice,  as  the  result  of  which 
plaintiff's  daughter  died.  The  second  cause  of  action 
charged  that  after  the  death  of  plaintiff's  daughter 
"  The  defendant  maligned  her  memory  by  repeating 
to  the  plaintiff  and  to  divers  other  persons,  a  false,  un- 
true and  malicious  charge  that  the  said  Clara  had  been 
pregnant  and  had  had  a  miscarriage."  The  court  states 
at  page  167  —  "  The  only  redress  for  slander  is  a  civil 
action.  A  libel  however,  both  at  common  law  and 
under  our  statute  is  a  crime  and  for  it  the  offender 
may  be  prosecuted  civilly  or  criminally  also;  both  at 
common  law  and  by  the  Penal  Code  (242)  a  libel  upon 
the  memory  of  the  dead  is  punishable  as  a  crime  .  .  . 
The  objection  that  there  could  not  be  a  proper  plaintiff 


212  THE    PUBLIC    CONSCIENCE 

in  a  civil  action  for  a  libel  on  a  deceased  person  would 
seem  equally  applicable  to  an  action  for  slander.  We 
are  therefore  of  the  opinion  that  such  an  action  (i.e. 
a  civil  action  for  maligning  the  memory  of  the  dead) 
will  not  lie." 

In  the  case  of  Colby  v.  Reynolds  (6  V.  489  at  page 
493)  the  court  distinguishes  between  libel  and  slander 
as  follows  —  "A  distinction  has  long  been  known  and 
recognized  between  verbal  and  written  slander.  Words, 
when  committed  to  writing  and  published  are  con- 
sidered as  libelous  which  if  only  spoken  would  not 
subject  the  person  speaking  to  any  action.  Perhaps  it 
is  to  be  regretted  that  a  distinction  was  ever  made  be- 
tween oral  and  written  slander,  and  if  it  was  a  new 
question,  no  distinction  would  now  be  made.  The 
reasons  which  have  been  given  for  the  distinction,  have 
been  questioned  both  by  writers  and  judges  of  emi- 
nence. It  has  been  made,  however,  and  has  become 
part  of  the  law,  and  as  such  we  must  receive  it.  There 
can  be  no  question  that  a  slander  written  and  pub- 
lished, evinces  a  more  deliberate  intention  to  injure, 
is  calculated  more  extensively  to  circulate  the  accusa- 
tion, and  to  provoke  the  person  accused,  to  take  the 
means  of  redress  into  his  own  hands  and  thus  to  com- 
mit a  breach  of  the  peace,  than  mere  oral  slander  which 
is  spoken  and  soon  forgotten." 

The  imputation  of  unchastity  is  actionable  per  se  by 
statute.  Imputing  unchastity  to  a  women  was  not 
actionable  at  common  law  unless  special  damage  was 
alleged  and  proved ;  but  today  in  New  York  State,  "  In 


ATTACK  UPON  RIGHTS  OF  PROPERTY   213 

an  action  of  slander  brought  by  a  woman  for  words 
imputing  unchastity  to  her  it  is  not  necessary  to  allege 
or  prove  special  damage."  N.  Y.  Code  of  Civil  Proc, 
paragraph  1906. 

In  the  case  of  Finch  v.  Uifguain,  11  Neb.  280,  the 
plaintiff  occupied  the  position  of  grand  worthy  chief 
templar  in  a  temperance  organization  and  also  that  of 
secretary  of  the  State  Temperance  Alliance  and  was 
constantly  engaged  in  the  duties  connected  therewith. 
The  defendants,  as  the  petition  alleged,  falsely  and 
maliciously  published  of  him  that  he  was  a  "  seducer 
of  innocent  girls  "  and  instanced  an  attempt  on  his 
part  to  debauch  and  ruin  a  young  school  girl,  who 
was  at  the  time  a  member  of  his  own  household.  Also 
that  he  was  "  an  arch  hypocrite  and  scoundrel  who  was 
simply  using  his  talents  for  money  making  purposes 
and  not  through  any  sincerity  in  the  cause  in  which  he 
was  laboring."  The  court  held  that  each  of  these 
charges  was  actionable  per  se,  and  without  proof  of 
special  damage. 

In  the  case  of  Young  v.  Kuhn,  71  Tex.  131  —  The 
court  held  that  a  charge  that  a  butcher  slaughters  and 
sells  diseased  and  unwholesome  meat  is  actionable 
per  se. 

In  the  case  of  Toye  v.  McMahon,  21  La.  Ann.  308, 
the  court  held  that  charging  a  white  man  with  being  a 
negro  under  the  existing  social  habits  and  prejudices 
of  that  state  was  calculated  to  inflict  injury  and 
damage  and  the  charge  was  recognized  as  slander 
actionable  per  se  under  the  constitution  of  Louisiana 


214  THE    PUBLIC    CONSCIENCE 

of  1868  although  the  common  law  distinction  between 
words  actionable  per  se  and  words  not  actionable  per 
se,  did  not  exist,  because  Louisiana  followed  the  civil 
law  of  France. 

In  the  Northern  States  very  few  cases  have  been  re- 
ported where  a  charge  that  a  white  man  is  a  negro  has 
been  held  to  be  slanderous  per  se.  On  the  other  hand 
most  of  the  Southern  States  so  hold  as  in  the  case  of 
Eden  v.  Legare,  1  Bay  (S.  C).  The  calling  a  person  a 
mulatto,  thereby  imputing  a  lack  of  civil  rights  en- 
joyed by  the  whites  was  held  slanderous  per  se. 

In  the  state  of  Massachusetts  an  action  will  lie  for 
calling  a  woman  a  drunkard,  it  having  been  so  decided 
by  the  court  in  the  case  of  Brown  v.  Nickerson,  5  Gray 
(Mass.)  1. 

In  the  case  of  Franklin  v.  Browne,  67  Ga.  272,  the 
court  held  that  words  charging  that  a  minister  of  the 
gospel  collected  money  for  a  particular  purpose  and 
embezzled  it  for  his  own  wrongful  use  and  that  he  was 
unfit  to  be  a  minister,  is  actionable  without  proof  of 
special  damage. 

In  the  early  English  case  of  Ogden  v.  Turner,  6  Mod. 
104,  Holt,  40,  2  Salk.  696,  the  defendant  said  to  the 
plaintiff,  "  Thou  art  one  of  those  that  stole  my  Lord 
Shaftsbury's  deer."  The  court  held,  "  That  words  to 
be  themselves  actionable  without  regard  to  the  person 
or  foreign  help  must  either  endanger  the  party's  life 
or  subject  him  to  infamous  punishment,  and  that  it  is 
not  sufficient  that  the  party  may  be  fined  and  im- 
prisoned; and  yet  that  no  one  will  assert  that  to  say 


ATTACK  UPON  RIGHTS  OF  PROPERTY   215 

one  has  committed  a  trespass  will  bear  an  action,  or 
that  at  least  the  thing  charged  upon  the  plaintiff  must 
be  scandalous." 

In  the  leading  case  in  U.  S.  of  Brooker  v.  Coffin,  5 
Johns  (N.  Y.)  188,  the  following  is  given  as  the  test  of 
words  actionable  per  se:  "  In  case  the  charge,  if  true, 
will  subject  the  party  charged  to  an  indictment  for  a 
crime  involving  moral  turpitude,  or  subject  him  to  an 
infamous  punishment,  then  the  words  will  be  in  them- 
selves actionable." 

In  the  case  of  Truth  Pub.  Co.  v.  Reed,  13  Ky.  L. 
Rep.  323,  it  was  held  that  to  publish  in  a  newspaper 
that  a  member  of  the  board  of  equalization  would  re- 
duce the  taxes  of  anybody  who  would  render  him  cer- 
tain political  favors  was  libelous. 

In  case  of  Larrabee  v.  Minn.  Pub.  Co.,  36  Minn.,  141, 
it  was  held  that  a  publication  charging  a  county  attor- 
ney with  culpable  neglect  of  his  official  duty  in  fail- 
ing to  prosecute  —  "  purely  out  of  political  fear  "  —  a 
certain  person  suspected  of  having  committed  a  crim- 
inal offense,  was  actionable,  because  neglect,  from  such 
a  motive  must  be  a  gross  offense  for  which  he  might 
be  removed  from  office. 

In  the  English  case  of  How  v.  Prin.,  Holt  652,  2 
Salk  694,  Lord  Holt  states:  "It  has  been  adjudged 
that  to  call  a  justice  of  the  peace  blockhead,  ass,  etc., 
is  not  a  slander  for  which  an  action  lies  because  he  was 
not  accused  of  any  corruption  in  his  employment  or 
any  ill  design  or  principle;  and  it  was  not  his  fault 
that  he  was  a  blockhead,  for  he  cannot  be  otherwise 


216  THE    PUBLIC    CONSCIENCE 

than  his  Maker  made  him ;  but  if  he  had  been  a  wise 
man  and  wicked  principles  were  charged  upon  him, 
when  he  had  not  them,  an  action  would  have  lain; 
though  a  man  cannot  be  wiser,  he  may  be  honester 
than  he  is."  ^ 

Truth  is  a  complete  defence  in  a  civil  action.  In 
case  of  Joannes  v.  Jennings,  6  T.  &  C,  138  at  page 
141,  the  court  states:  "  In  civil  actions  where  the  truth 
of  the  alleged  libel  is  pleaded  in  justification,  it  may  be 
proved  as  a  complete  bar  to  the  suit ;  and  in  such  case 
the  motives  with  which  the  publication  was  made  are 
not  material.  .  .  .  Our  laws  allow  a  man  to  speak  the 
truth  although  it  be  done  maliciously." 

A  better  rule  applies  in  criminal  actions  as  it  is  stated 
in  the  N.  Y.  Penal  Code,  Par.  244,  which  is  as  follows : 

In  criminal  actions  for  libel,  "  The  publication  is 
justified,  when  the  matter  charged  as  libelous,  is  true 
and  was  published  with  good  motives  and  for  justifi- 
able ends.  The  publication  is  excused  when  it  is 
honestly  made,  in  the  belief  of  its  truth  and  upon  rea- 
sonable grounds  for  this  belief,  and  consists  of  fair 
comments  upon  the  conduct  of  a  person  in  respect  of 
public  affairs  or  upon  a  thing  which  the  proprietor 
thereof  offers  or  explains  to  the  public." 

Comment.  It  will  be  noted  from  the  foregoing  that  even 
though  the  writing  complained  of  be  true,  in  the  case 
of  a  criminal  libel  it  must  have  been  published  with  good 
motives  and  without  malice,  for  truth  to  prevail  as  a 
defence. 

1  One  may  question  the  wisdom  of  the  author  of  this  sage 
remark,  however  one  may  respect  his  integrity! 


ATTACK  UPON  RIGHTS  OF  PROPERTY   217 

Bigamy 

REGINA  V.  TOLSON 

Crown  Case  Reserved,  1889 

(Reported  23  Q.  B.  Div.,  168.    Beale,  236  3d  ed.) 

Wills,  J.  In  this  case  the  prisoner  was  convicted  of 
bigamy.  She  married  a  second  time  within  seven  years 
of  the  time  when  she  last  knew  of  her  husband  being 
alive,  but  upon  information  of  his  death  which  the 
jury  found  that  she  upon  reasonable  grounds  believed 
to  be  true.  A  few  months  after  the  second  marriage 
he  re-appeared. 

The  statute  upon  which  the  indictment  was  framed 
is  in  these  words :  "  Whoever,  being  married,  shall 
marry  any  other  person  during  the  life  of  the  former 
husband  or  wife  shall  be  guilty  of  felony,  punishable 
with  penal  servitude  for  not  more  than  seven  years,  or 
imprisonment  with  or  without  hard  labor  for  not  more 
than  two  years,"  with  a  proviso  that  "  nothing  in  this 
act  shall  extend  to  any  person  marrying  a  second  time 
whose  husband  or  wife  shall  have  been  continually 
absent  from  such  person  for  the  space  of  seven  years 
last  past,  and  shall  not  have  been  known  by  such  person 
to  be  living  within  that  time."  (The  rest  of  the 
opinion,  which  is  very  long,  has  been  greatly  con- 
densed. G.C.C.) 

It  is  a  principle  of  English  law  that  ordinarily  speak- 
ing a  crime  is  not  committed  if  the  mind  of  the  person 


218  THE    PUBLIC    COXSCIENXE 

doing  the  act  in  question  be  innocent.  But  although 
this  is  the  general  rule  it  is  not  inflexible.  Z»*Iuch 
municipal  law  today  must  be  obeyed  whether  there  is 
a  guilty  mind  of  not.  The  acts  are  properly  construed 
as  imposing  the  penalty  when  the  act  is  done,  no  mat- 
ter how  innocently.  If  a  man  fails  to  observe  the 
statutorj^  provision  it  is  at  his  own  peril.  Yet  even  in 
such  cases,  the  nature  of  the  offense  wiU  be  aU 
important. 

In  the  present  case  one  consequence  of  holding  that 
the  offense  is  complete  if  the  husband  or  wife  is  de 
facto  alive  at  the  time  of  the  second  marriage  —  would 
be  that  though  the  evidence  of  death  should  be  suffi- 
cient to  induce  the  Court  of  Probate  to  grant  probate 
of  the  will,  etc.,  the  wife  of  the  person  supposed  to  be 
dead  who  had  married  six  years  and  eleven  months 
after  the  last  time  she  had  known  him  to  be  aUve  would 
be  guilty  of  felony  in  case  he  should  turn  up  twenty 
years  afterwards.  Any  construction  of  a  statute  is 
justifiable  which  will  avoid  such  monstrous  conse- 
quences. 

The  intention  of  the  legislature  cannot  be  decided 
upon  simple  prohibitory'  words  without  reference  to 
other  considerations. 

Stephen,  J.,  said  that  in  every  case  knowledge  of  fact 
is  to  some  extent  an  element  of  criminality  as  much  as 
competent  age  and  sanity.  An  alleged  offender  is 
deemed  to  have  acted  under  that  state  of  facts  which 
he  in  good  faith  and  on  reasonable  grounds  believed 
to  exist  when  he  did  the  act  alleged  to  be  an  offense. 


RIGHTS  AS  BETWEEN  TWO  P.\RTIES      219 

Wills.  Stephen  and  other  J  J.  were  of  opinion  that 
the  conviction  should  be  quashed.  Manist>',  J.  and 
others   v::v      :  ;      ±  ;..ation.     The   con\'iction   was 

quashed. 

Cornrr.iT.t.  Points  —no  crime  is  committed  if  the  mind  of 
the  person  doing  the  act  is  innocent;  but  this  is  affected 
by  statutes  which  are  mandatory.  StiU  we  must  take 
account  of  facts,  (Stephen.  J.»  and  of  absurdities  which 
strict  construction  woiild  entaiL 


VII.    RIGHTS  AS   BETWEEN  TWO   PARTIES 
Ownership   of  Aerolite 

GODD.IED  ■■:.  WIXCHELL.  1S92 

S6  Iowa.  71 

(Mhb-- 5  C-i:  IS  Cases,  p.  41  5.) 

An  aerolite  fell  upon  land  owned  by  the  plaintiff 
(Goddard)  on  May  2, 1890.  The  day  after  it  was  dug 
out  by  Peter  Hoagland  in  the  presence  of  Elictson. 
tenant  of  the  grass  pri^nlege  at  the  time.  Hoagland 
claime'i  it  because  it  was  treasure  trove.  On  May  5th 
he  sold  it  to  the  defendant  Winchell  for  One  Hundred 
and  Five  DoUars-  Goddard  claimed  it  and  the  "  dis- 
trict court  found  that  the  aerolite  became  a  part  of  the 
soil  on  which  it  fell." 

On  appeal  the  language  of  Blackstone  was  cited: 
"  Occupancy  is  the  taking  possession  of  those  things 


220  THE    PUBLIC    CONSCIENCE 

which  before  belonged  to  nobody "  and  "  whatever 
movables  are  found  upon  the  surface  of  the  earth,  or 
in  the  sea,  and  are  unclaimed  by  any  owner,  are  sup- 
posed to  be  abandoned  by  the  last  proprietor,  and  as 
such  are  returned  into  the  common  stock  and  mass  of 
things,  and  therefore  they  belong  as  in  a  state  of 
nature,  to  the  first  occupant  or  finder." 

The  judge  of  the  appellate  court  decided  that  such 
reason  did  not  apply.  The  aerolite  was  one  of  nature's 
deposits  and  it  was  in  a  very  real  sense  "  immovable." 
"  Except  for  the  peculiar  manner  in  which  it  came,  its 
relation  to  the  soil  would  be  beyond  dispute."  It  was 
"never  lost  nor  abandoned." 

He  further  said  that  his  "  conclusions  were  an- 
nounced with  some  doubts  as  to  their  correctness  but 
they  arise  not  so  much  from  the  application  of  known 
rules  of  law  to  proper  facts  as  from  the  absence  of 
defined  rules  for  these  particular  cases." 

Judgment  jor  the  plairitiff  affirmed. 


Lien 

HANNA  V.  PHELPS 

Supreme  Court  of  Judicature  of  Indiana,  1855 

(7  Ind.  21.) 

Phelps,  the  plaintiff  in  the  original  case  (who  won 
it),  delivered  to  Hanna  and  Burr,  engaged  in  the  busi- 
ness of  rendering  lard  from  hogs'  heads  by  steam  and 


RIGHTS  AS  BETWEEN  TWO  PARTIES      221 

barrelling  the  lard  so  rendered  for  hire,  three  thousand 
hogs'  heads  to  be  rendered  and  returned  to  him  for  a 
reasonable  compensation.  Hanna  and  Burr  returned 
a  part  of  the  lard  so  rendered  but  retained  in  their  pos- 
session over  3000  pounds,  claiming  that  Phelps  was 
indebted  to  them  $200  for  rendering  lard  and  that  this 
amount  exceeded  their  indebtedness  to  him.  They 
declined  to  deliver  any  more  lard.  This  amounted  to 
a  conversion,  that  is  the  forcible  taking  possession  of 
property  which  did  not  belong  to  them.  They  had  an 
action  at  law  for  the  debt  due  them.  They  could  sue 
for  payment ;  but  they  forcibly  withheld  the  lard  which 
they  had  agreed  to  make  and  deliver  for  a  price.  The 
question  here  is  whether  they  had  a  lien  on  the  lard. 
The  court  held  that  they  had  not.  "An  unqualified 
refusal,  upon  a  demand  duly  made,  is  evidence  of  a 
conversion;  because  it  involves  a  denial  of  any  title 
whatever  in  the  person  who  makes  the  demand.  In 
the  case  before  us  the  defendants  declined  to  deliver 
any  more  lard.  This  was,  in  effect,  an  assumption 
that  they  had  in  their  possession  no  more  belonging 
to  the  plaintiff." 

Judgment  affirmed  for  Phelps. 

NAYLOR  V.  MANGLES,  1794 

(Reported  1  Esp.,  109.) 

Lord  Kenyon  said,  liens  were  either  by  common  law, 
usage  or  agreement.  Liens  by  common  law  were  given 
where  a  party  was  obliged  by  law  to  receive  goods, 


222  THE    PUBLIC    CONSCIENCE 

etc.,  in  which  case,  as  the  law  imposed  the  burden,  it 
also  gave  him  the  power  of  retaining,  for  his  indemnity. 
This  was  the  case  of  innkeepers,  who  by  law  had  such 
a  lien.  That  a  lien  from  usage  was  a  matter  of  evi- 
dence. The  usage  in  the  present  case  had  been  proved 
so  often,  he  said,  that  it  should  be  considered  as  a  set- 
tled point  that  wharfingers  had  the  lien  contended  for. 


BEVAN  V.  WATERS,  1828 

(Reported  Mood,  and  M.,  235.) 

The  question  in  the  cause  was  whether  the  defend- 
ant was  liable  to  the  plaintiff  for  the  training  of  a 
race  horse,  which  the  defendant  had  bought  of  a  third 
person,  whilst  in  the  plaintiff's  possession,  and  which 
had  been  given  up  to  the  defendant  under  an  agree- 
ment, as  was  contended,  to  pay  for  the  training,  in 
consideration  of  the  plaintiff's  lien.  The  defendant 
contended  that  there  was  no  lien. 

Best,  C.  /.,  held  that  in  this  case,  on  the  principle  of 
the  common  law,  where  the  bailee  expends  labor  and 
skill  in  the  improvement  of  the  subject  delivered  to 
him,  he  has  a  lien  for  his  charge.  I  think  that  the 
trainer  has  a  lien  for  the  expense  and  skill  bestowed 
in  bringing  the  horse  into  condition  to  run  at  races. 

yerdict  jor  the  plaintiff. 


RIGHTS  AS  BETWEEN  TWO  PARTIES      223 
JUDSON  V.  ETHERIDGE,  1833 

(Reported  1  Cr.  &  M.,  743.) 

A  horse  was  delivered  by  the  plaintiff  to  the  de- 
fendant to  be  stabled  and  taken  care  of,  and  fed  and 
kept  by  the  defendant  for  the  plaintiff,  for  remunera- 
tion and  reward.  The  plaintiff  became  indebted  to  the 
defendant  in  the  sum  of  £10  for  care  of  the  horse,  and 
the  defendant  detained  the  horse  until  the  sum  should 
be  paid. 

"  The  question  is,  whether,  on  the  state  of  facts  dis- 
closed the  defendant  has  or  has  not  a  lien  upon  the 
horse.  I  am  of  opinion  that  he  has  no  lien.  The 
present  case  is  distinguishable  from  the  cases  of  work- 
men and  artificers,  and  persons  carrying  on  a  particular 
trade,  who  have  been  held  to  have  a  lien,  by  virtue 
of  labor  performed  in  the  course  of  their  trade,  upon 
chattels  bailed  to  them.  The  decisions  on  the  sub- 
ject seem  to  be  all  one  way." 

Lord  Chief  Justice  Best  expressly  draws  the  distinc- 
tion between  a  trainer,  who  bestows  his  skill  and  labor, 
and  a  livery  stable  keeper ;  between  horses  taken  in  by 
a  trainer  and  altered  in  their  value  by  the  application 
of  his  skill  and  labor,  and  horses  standing  at  livery 
without  such  alteration. 

Judgment  for  the  plaintiff. 


224  THE    PUBLIC    CONSCIENCE 

CALDWELL  v.  TUTT,  1882 

Tennessee 

(Reported  10  Lea,  258.) 

Plaintiffs  are  livery  stable  keepers  in  the  city  of 
Clarksville.  Mr.  Mumford  had  placed  his  horse  in  the 
stable  to  be  kept  by  the  owners  of  the  stable.  He  was 
in  the  habit  of  taking  the  horse  from  the  stable 
occasionally  for  a  ride,  by  and  with  the  consent  of  the 
keepers  of  the  stable.  While  riding  him  on  one  of 
these  occasions,  the  horse  was  levied  on  by  defendant, 
a  constable,  by  virtue  of  an  execution  against  the 
owner. 

Had  the  livery  stable  keeper  whose  bill  for  board  of 
the  horse  was  unpaid,  a  lien  on  the  horse  for  its  pay- 
ment, or  was  the  execution  levy  superior  to  it? 

The  circuit  judge  decided  in  favor  of  the  defendant. 
Appeal  to  the  Supreme  Court. 

Freeman,  J.,  said,  the  case  turns  mainly  on  sections 
1993a  and  1993e  of  the  Code.  The  first  provides: 
"  Whenever  any  horse  or  other  animal  is  received  to 
pasture  for  a  consideration,  the  former  (i.e.  the  person 
caring  for  it)  shall  have  a  lien  upon  the  animal  for  his 
proper  charges,  the  same  as  the  innkeeper's  lien  at 
common  law."  The  latter  section  is:  "Livery-stable 
keepers  shall  be  entitled  to  the  same  lien  provided  for 
in  Section  1  of  this  act,  on  all  stock  received  by  them 
for  board  and  feed,  until  all  reasonable  charges  are 
paid." 


RIGHTS  AS  BETWEEN  TWO  PARTIES      225 

The  right  of  the  innkeeper  is  to  detain  or  hold  the 
horse  till  the  price  of  his  provender  be  paid.  (3  Par- 
sons, 249) .  Mr.  Parsons  adds :  "  What  shows  the  spirit 
and  principle  of  the  rule,  if  he  permit  his  guest  or  horse 
to  depart  on  credit,  he  loses  his  lien,  and  can  never 
arrest  it  after  for  that  debt  if  the  guest  come  again." 

Apply  this  rule  and  the  sections  of  the  Code  to  the 
circumstances  of  this  case. 

The  innkeeper  permitted  the  owner  to  take  his 
horse  out  to  ride.  It  cannot  be  maintained  that  he 
thereby  intended  to  permit  the  party  to  depart  with 
the  horse  —  it  was  well  understood  that  the  possession 
would  be  in  a  short  time  restored.  Neither  party 
thought  of  terminating  the  contract,  so  as  to  release 
thereby  the  lien  of  the  livery-man. 

Thp  livery  stable  keeper  would  retain  his  lien  against 
Mumford;  and  Mumford's  creditor,  who  caused  the 
execution  to  be  made,  can  have  no  higher  rights  than 
Mumford  himself.  His  claim  is  subject  to  the  livery- 
man's lien. 


JACKSON  V.  CUMMINS 
1838,  England 

(Reported  5  M.  &  W.,  342.) 

Trespass  for  breaking  and  entering  an  outhouse  and 
premises  belonging  to  the  plaintiff,  and  seizing  and 
driving  away  ten  cows,  the  property  of  the  plaintiff, 


226  THE    PUBLIC    CONSCIENCE 

and  converting  and  disposing  of  the  same  to  the  de- 
fendant's own  use,  etc. 

It  was  contended  by  the  defendants  that  two  of 
said  cows  for  the  space  of  eight  months  had  been  pas- 
tured and  fed  by  the  defendant  Charles  Cummins  for 
the  plaintiff  at  the  plaintiff's  request,  and  for  reward 
and  remuneration.  There  was  and  still  is  due  and 
owing  to  Cummins  the  sum  of  £16  5s.,  for  this  care. 
It  was  further  agreed  that  Cummins  was  to  keep  the 
cows  so  long  as  this  sum  remained  unpaid.  These  two 
cows  were  in  Cummins'  possession  until  the  plaintiff 
fraudulently,  unlawfully  and  wrongfully  took  them 
away  whilst  Cummins  had  a  lien  upon  them.  Cum- 
mins maintained  that  he  peacefully  and  lawfully  re- 
gained his  own  property.  He  pleaded  not  guilty  as  to 
the  other  cattle. 

The  court  of  first  instance  found  for  the  plaintiff,  the 
jury  declaring  that  no  such  agreement  existed  between 
plaintiff  and  defendant.  On  appeal  before  Parke,  B., 
the  question  of  lien  was  discussed  very  fully.  He  said : 
"  I  think  by  the  general  law  no  lien  exists  in  the  case 
of  agistment.  The  general  rule  is,  that  by  the  general 
law,  in  the  absence  of  any  special  agreement,  when- 
ever a  party  has  expended  labor  and  skill  in  the  im- 
provement of  a  chattel  bailed  to  him,  he  has  a  lien 
upon  it."  And  he  did  not  find  that  one  who  simply 
took  animals  to  pasture  had  done  anything  to  improve 
them.    The  verdict  was  confirmed  to  the  plaintiff.^ 

1  For  a  full  discussion  of  the  agistor's  lien  cf.  "  Cases  on  Prop- 
erty "  Gray,  Vol.  1,  p.  162,  Editor's  Note.    "  The  agistor  has  a  lien 


RIGHTS  AS  BETWEEN  TWO  PARTIES      227 

BROADWOOD  v.  GRANARA 
Exchequer,  1854 

(Reported  10  Exch.,  417.) 

In  March,  1853,  a  Monsieur  Hababier,  a  foreigner 
anci  professional  pianist,  went  to  reside  at  the  hotel  of 
the  defendant.  Hotel  I'Europe,  Leicester  Square.  On 
the  28th  of  that  month  he  went  to  the  manufactory  of 
the  plaintiffs,  Messrs.  Broadwood,  and  requested  the 
use  of  a  pianoforte.  It  is  usual  to  lend  pianofortes  to 
professional  musicians  free  of  cfjj^ge.  One  was  sent 
him,  later  taken  away  and  replaced  by  another.  It 
was  understood  by  the  proprietors  of  the  hotel  that  the 
piano  was  not  the  property  of  Monsieur  Hababier. 
(He  claimed  it  was.) 

It  was  admitted,  for  the  purposes  of  this  case,  that 
the  hotel  of  the  defendant  was  and  is  an  inn ;  and  that 


by  the  Scotch  law  and  in  many  jurisdictions,  a  lien  is  given  by 
statute  to  agistors  and  stable-keepers." 

Cf.  also  Steinman  v.  Wilkins,  Pennsylvania,  1844  (Reported  7 
W.  &  S.  466)  where  Gibson,  C.  J.  says,  "  It  is  difficult  to  find  an 
argument  for  the  position  that  a  man  who  fits  an  ox  for  the  shambles, 
by  fattening  it  with  his  provender,  does  not  increase  its  intrinsic 
value  by  means  exclusively  within  his  control,"  also  "  The  truth  is, 
the  modem  decisions  evince  a  struggle  of  the  judicial  mind  to 
escape  from  the  narrow  confines  of  the  earlier  precedents,  but  with- 
out having  as  yet  established  principles  adapted  to  the  current 
transactions  and  convenience  of  the  world  .  .  .  Lord  Ellenborough, 
alluding  to  the  old  decisions,  said  that  if  they  '  are  not  supported 
by  law  and  reason,  the  convenience  of  mankind  certainly  requires 
that  our  decisions  should  not  be  governed  by  them '  and  Chief 
Justice  Best  declared  that  the  doctrine  of  lien  is  so  just  between 
debtor  and  creditor  that  it  cannot  be  too  much  favored." 


228  THE    PUBLIC    CONSCIENCE 

the  defendant  was  and  is  entitled  to  the  rights  of  an 
innkeeper. 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  lien 
claimed  by  the  defendant  cannot  prevail  .  .  ,  there  is 
no  case  which  decides  that  an  innkeeper  has  a  right 
of  lien  under  such  circumstances  as  these.  This  is  a 
case  of  goods,  not  brought  to  the  inn  by  a  traveler 
as  his  goods  either  upon  his  coming  to  or  whilst  stay- 
ing at  the  inn,  but  they  are  goods  furnished  for  his  tem- 
porary use  by  a  third  person,  and  known  by  the  inn- 
keeper to  belong  to  that  person. 

Piatt,  B.  The  c&,3  of  Johnson  v.  Hill  shows  the 
principle  of  law  which  is  applicable  to  the  present  case. 
If  a  person  brings  the  horse  of  another  to  an  inn,  the 
innkeeper  may  detain  it  from  the  owner  until  its  keep 
is  paid.  But  if  the  innkeeper  knew  that  the  person 
bringing  the  horse  illegally  got  possession  of  it,  and 
therefore  had  no  right  to  pledge  it  for  his  debt,  then 
the  lien  does  not  attach. 

Judgment  for  the  plaintiffs. 


THREEFALL  v.  BORWICK^ 
Queen's  Bench,  1872 

(Reported  L.  R.  7  Q.  B.,  711.) 

One  Butcher  lodged  at  the  Ferry  Hotel  on  Lake 
Windermere,  with  his  wife  and  sister,  bringing  with 
him    a    pianoforte    which    defendant    thought    was 

^  Cf.  also  Robins  and  Co.  v.  Gray,  Queens  Bench  Division,  1895. 
Reported  2  Q.  B.,  501. 


RIGHTS  AS  BETWEEN  TWO  PARTIES      229 

Butcher's  own  but  which  in  reality  was  the  property 
of  the  plaintiff  from  whom  he  had  hired  it.  After 
several  weeks  Butcher  left  the  hotel  owing  £45;  and, 
on  demand  of  the  plaintiff,  defendant  claimed  to  de- 
tain the  piano  in  exercise  of  his  lien  as  innkeeper  for 
the  debt  due  by  Butcher. 

It  was  objected  by  counsel  for  the  plaintiffs  that 
pianos  were  not  such  personal  goods  as  were  commonly 
brought  to  inns  by  travelers.  The  court  overruled 
this  ..."  Whether  the  defendant  was  bound  to  re- 
ceive the  piano  or  not,  he  did  receive  it  as  the  goods  of 
the  guest,  and  so  must  become  liable  for  it,  and  there- 
fore must  be  entitled  to  his  lien. 

Verdict  for  defendant  —  the  innkeeper. 

Lord  Esher,  M.  R.,  "  The  duties,  liabilities  and 
rights  of  innkeepers  with  respect  to  goods  brought  to 
inns  by  guests  are  founded,  not  upon  bailment,  or 
pledge,  or  contract  but  upon  the  custom  of  the  realm 
with  regard  to  innkeepers.  Their  rights  and  liabilities 
are  dependent  upon  that,  and  that  alone;  they  do  not 
come  under  any  other  head  of  law.  What  is  the  lia- 
bility of  an  innkeeper  in  this  respect?  If  a  traveler 
comes  to  an  inn  with  goods  which  are  his  luggage  —  I 
do  not  say  his  personal  luggage  but  his  luggage  —  the 
innkeeper  by  the  law  of  the  land  is  bound  to  take  him 
and  his  luggage  in.  The  innkeeper  cannot  discrimi- 
nate and  say  that  he  will  take  in  the  traveler  but  not 
his  luggage.  ...  He  has  not  to  inquire  whether  the 
goods  are  the  property  of  the  person  who  brings  them 
or  of  some  other  person." 


230  THE    PUBLIC    CONSCIENCE 

New  York  Times  {Probably  Nov.)  1913. 

The  clause  printed  on  its  passenger  tickets  and 
baggage  checks  by  the  New  York,  New  Haven  &  Hart- 
ford Railroad,  limiting  its  baggage  liability  in  case  of 
loss  to  $150  in  New  York  State,  and  $100  in  Massa- 
chusetts unless  the  owner  declares  a  higher  value 
and  pays  a  premium,  was  upheld  by  the  Appellate  Di- 
vision yesterday  in  a  suit  brought  by  Mrs.  Katherine 
B.  against  the  road.  Mrs.  B.  sued  for  $1,300  as  the 
value  of  a  lost  trunk  and  its  contents  checked  on  a 
passenger  ticket  from  Gardner,  Mass.,  to  this  city. 
She  said  she  had  not  noticed  the  clause  limiting  bag- 
gage liability  and  that  no  one  had  called  her  attention 
to  it.    She  refused  therefore  to  be  bound  by  it. 

The  Appellate  Division,  by  a  divided  vote,  Justice 
Scott  dissenting,  held  that  Mrs.  B.  could  collect  only 
$100  for  the  loss  of  her  trunk. 


Trespass 

RACE  V.  WARD 

Queen's  Bench,  1855 

(Reported  4  E.  &  B.,  702.    Gray  II,  p.  10.) 

The  defendants  in  this  case  broke  and  entered  the 
plaintiff's  close  in  the  township  of  Horsley,  justifying 
themselves  under  an  immemorial  custom  in  that  town- 
ship for  all  the  inhabitants  for  the  time  being  to  have 
the  liberty  and  privilege  to  take  water  from  a  certain 
well  or  spring  and  to  use  it  for  domestic  purposes. 


RIGHTS  AS  BETWEEN  TWO  PARTIES      231 

The  trespass  was  acknowledged  but  justified  by  the 
defendants. 

Lord  Campbell  said,  among  other  things,  in  his 
opinion,  that  "  the  water  which  they  claim  a  right  to 
take  is  not  the  produce  of  the  plaintiff's  close;  it  is 
not  his  property;  it  is  not  the  subject  of  property. 
Blackstone,  following  other  elementary  writers,  classes 
water  with  the  elements  of  light  and  air." 

It  was  held  that  water  in  a  spring  or  well  could  be 
taken  under  immemorial  custom,  though,  had  it  been 
in  a  cistern,  there  would  have  been  no  such  right. 
Judgment  for  the  defendants. 


HIGGINSON  V.  YORK 

5  Mass.  341 

(Supreme  Judicial  Court  of  Massachusetts,   1809.     Ames,  p.  84.) 

In  the  year  1805  the  defendant,  the  master  of  a 
vessel  employed  in  the  coasting  trade,  was  employed 
by  one  Kenniston,  a  trader,  to  take  a  cargo  of  wood 
from  Burnt  Island  to  Boston.  The  defendant  went  to 
the  island  with  Kenniston,  took  on  board  thirty  or 
forty  cords  of  wood,  carried  it  to  Boston,  where  it  was 
sold,  and  gave  the  proceeds  to  Kenniston.  One 
Phinney,  without  right  or  authority  had  cut  the  wood 
in  question,  and  had  sold  it  to  Kenniston,  previously 
to  the  agreement  between  the  defendant  and  Ken- 
niston. 


232  THE    PUBLIC    CONSCIENCE 

There  was  no  evidence  that  the  defendant  had  any 
knowledge  of  the  trespass  committed  by  Phinney,  or 
that  he  was  in  any  manner  concerned,  or  aiding  or 
assisting  therein,  other  than  by  going  to  the  island  and 
taking  the  wood  upon  freight. 

The  court  observed  that  the  defendant  was  plainly 
a  trespasser  in  going,  without  the  license  of  the  owner, 
upon  the  land  of  the  plaintiffs. 

Phinney  acquired  no  property  in  the  wood  by  cut- 
ting it,  as  against  the  owners  of  the  soil;  Kenniston 
could  acquire  none  from  him  and  could  transfer  none 
to  the  present  defendant. 

Verdict  for  the  plaintiff. 


BULLOCK  V.  BABCOCK 
Supreme  Court  of  Judicature,  New  York,  1829 

(3  Wendell,  391.    Ames,  76.) 

In  1816  the  defendant,  then  being  about  twelve 
years  of  age,  accidentally  shot  a  schoolmate  in  the 
eye  with  an  arrow.  The  shooting  was  accidental  al- 
though the  arrow  was  aimed  at  him  in  playfulness. 
There  had  been  no  quarrel  between  the  boys  but  the 
plaintiff  had  been  afraid  that  he  would  be  shot.  The 
shot  destroyed  one  eye  and  affected  the  sight  of  the 
other.  His  family  was  poor  and  he  was  unable  to  re- 
ceive an  education. 

Suit  for  damages  was  commenced  in  1827,  within 


RIGHTS  AS  BETWEEN  TWO  PARTIES      233 

a  year  after  the  plaintiff  became  of  age.  The  judge 
of  the  trial  court  charged  the  jury  that  shooting  the 
arrow  in  the  schoolroom  where  there  were  a  number 
of  boys  assembled  was  an  unlawful  act;  that  it  ap- 
peared to  him  to  have  been,  at  the  least,  grossly  negli- 
gent and  unjustifiable;  and  that  if  the  jury  thought 
so,  they  ought  to  find  a  verdict  for  the  plaintiff  with 
damages.  They  accordingly  gave  damages  in  the  sum 
of  $180.00. 

A  motion  was  made  to  set  aside  the  verdict.  This 
was  denied  by  Marcy,  J.,  who  said :  "  It  is  not,  I  appre- 
hend, necessary  for  us  to  say  whether  the  judge  erred 
or  not  in  his  remark  to  the  jury  that,  etc."  for,  if  the 
act  in  itself  was  lawful,  and  there  was  not  a  proper 
care  to  guard  against  consequences  injurious  to  others, 
the  actor  must  be  held  responsible  for  such  conse- 
quences. 

In  ordinary  cases,  if  the  injury  is  not  the  effect  of 
an  unavoidable  accident,  the  person  by  whom  it  is  in- 
flicted is  liable  to  respond  in  damages  to  the  sufferer. 
Where,  in  shooting  at  butts,  the  archer's  arrow  glanced 
and  struck  another,  it  was  holden  to  be  a  trespass.  So 
where  a  number  of  persons  were  lawfully  exercising 
themselves  at  arms,  one,  whose  gun  accidentally  went 
off,  was  held  liable  in  trespass  for  the  injury  occasioned 
by  the  accident.  Where,  in  a  dark  night,  the  defend- 
ant got  on  the  wrong  side  of  the  road,  and  an  injury 
ensued  to  the  person  of  the  plaintiff,  trespass  for  the 
damage  was  sustained.  //  the  accident  happen  entirely 
without  the  jault  oj  the  defendant,  or  any  blame  being 


234  THE    PUBLIC    CONSCIENCE 

imputable  to  him,  an  action  will  not  lie.  (Italics 
mine.  —  G.C.C.)  (Wakeman  v.  Robinson.)  In  that 
case,  the  blame  imputable  to  the  defendant  was,  that, 
his  horse  being  young  and  spirited,  he  used  him  with- 
out a  curb  rein ;  and  that  he  ought  to  have  continued 
on  a  straight  course. 

Unless  a  rule  is  to  be  applied  to  this  case  different 
from  that  applicable  to  a  transaction  between  adults, 
the  proof  was  most  abundant  to  charge  the  defendant 
with  the  consequences  of  the  injury.  Infants,  in  the 
same  manner  as  adults,  are  Hable  for  trespass,  slander, 
assault,  etc.  Where  infants  are  the  actors,  that  might 
probably  be  considered  an  unavoidable  accident  which 
would  not  be  so  considered  where  the  actors  are  adults ; 
but  such  a  distinction,  if  it  exists,  does  not  apply  to 
this  case.  The  liability  to  answer  in  damages  for  tres- 
pass does  not  depend  upon  the  mind  or  capacity  of 
the  actors;  for  idiots  and  lunatics  are  responsible  in 
the  action  of  trespass  for  injuries  inflicted  by  them^' 

In  Brown  v.  Kendall  (Ames,  p.  79)  the  remark  is 
made  by  Shaw,  C.  J.  that  "  to  make  an  accident  or 
casualty,  or,  as  the  law  sometimes  states  it,  inevitable 
accident,  it  must  be  such  an  accident  as  the  defendant 
could  not  have  avoided  by  the  use  of  the  kind  and 
degree  of  care  necessary  to  the  exigency,  and  in  the 
circumstances  in  which  he  was  placed." 

1  Note  that  there  can  be  no  criminal  charge  where  the  injuiy 
is  unintentional.     (Italics  mine.) 


RIGHTS  AS  BETWEEN  TWO  PARTIES     235 

Caveat  Emptor  —  Let  the  Buyer  Beware 
WARREN  V.  BUCK 

Vermont  Reports,  October  Term,  1898 

The  defendant,  a  farmer,  sold  the  plaintiff,  a  butcher, 
seven  hogs  on  inspection,  at  the  full  market  price  per 
pound,  live  weight,  knowing  that  they  were  to  be  cut 
up  and  sold.  Two  of  the  hogs  had  tuberculosis,  a 
latent  defect  which  destroyed  their  food  value. 

The  court  held  to  the  rule,  caveat  emptor  (the 
buyer's  risk)  and  dismissed  the  complaint. 

Comment.  The  rule  caveat  emptor  has  been  greatly  modi- 
fied by  statute  and  it  may  be  said  that  the  present  day 
practice  holds  that  deceit  is  fraud  in  most  cases  whether 
there  have  been  any  formal  representations  or  not. 

In  Saltus  V.  Everett,  20  Wend.  267,  275,  it  is  said: 
"  The  universal  and  fundamental  principle  of  our  law 
of  personal  property  is,  that  no  man  can  be  divested 
of  his  property  without  his  consent,  and  consequently 
that  even  the  honest  purchaser  under  a  defective  title 
cannot  hold  against  the  true  proprietor." 

Fletcher,  J.,  from  whom  the  above  is  quoted,  giving 
judgment  in  the  case  of  Robinson  v.  Baker,  (cf.  Gray 
I,  p.  183,  [1849])  said:  "  Upon  this  settled  and  univer- 
sal principle  .  .  .  the  books  are  full  of  cases,  many  of 
them  hard  and  distressing  cases,  where  honest  and  in- 
nocent persons  have  purchased  goods  of  others  ap- 


236  THE    PUBLIC    CONSCIENCE 

parently  the  owners,  and  often  with  strong  evidence  of 
ownership,  but  who  yet  were  not  the  owners,  and  the 
purchasers  have  been  obliged  to  surrender  the  goods 
to  the  true  owners,  though  wholly  without  remedy  for 
the  money  paid.  .  .  .  These  are  hazards  to  which 
persons  in  business  are  continually  exposed  by  the 
operation  of  this  universal  principle,  that  a  man's 
property  cannot  be  taken  from  him  without  his  con- 
sent." 

Comment.  Here  the  principle  of  caveat  emptor  still  holds 
and  statutes  are,  so  far  as  I  know,  powerless  to  remedy 
such  cases.  Business  men  now  protect  themselves  in  the 
transfer  of  real  estate  by  having  the  titles  guaranteed 
or  insured,  for  a  fee,  by  companies  having  large  capital, 
who  make  this  their  business.  Of  course  criminal  action 
may  be  brought  against  the  offenders  but  the  property 
lies  in  the  legal  owner  and  no  other. 


Eminent  Domain 

GARRISON  V.  THE  CITY  OF  NEW  YORK 

88  U.  S.  196 

The  New  York  legislature  in  1869  passed  an  act 
providing  for  the  widening  and  straightening  of  Broad- 
way in  New  York  City,  and  for  the  purchase  by  con- 
demnation of  all  property  necessary  to  the  carrying 
out  of  the  project.  Under  this  act  the  measures 
authorized  were  taken  and  various  awards  were  made 
by  three  commissioners  of  estimate  —  among  others 


RIGHTS  AS  BETWEEN  TWO  PARTIES      237 

one  of  $40,000  to  one  Garrison  as  his  damages  for 
taking  a  portion  of  leasehold  estate  held  by  him. 

The  case  in  question  has  no  further  bearing  upon 
eminent  domain  but  is  wholly  devoted  to  the  right  of 
the  legislature  of  New  York  to  pass  an  act  providing 
for  the  review  of  these  awards  in  case  unfairness  or 
fraud  should  be  discovered.  The  case  referred  to  inter- 
feres with  contract  rights  but  was  decided  adversely 
to  this  contention. 


Contract 

FLETCHER  v.  PECK 

6  Cranch  87,  1810 

This  case  concerned  lands  sold  to  one  John  Peck  of 
Georgia  under  an  act  of  the  legislature  authorizing 
such  sale.  It  was  afterwards  claimed  that  the  State 
of  Georgia  had  no  authority  to  dispose  of  such  lands 
as  they  really  belonged  to  the  United  States  as  heir 
of  the  British  Crown.  With  the  ramifications  of  the 
case  in  the  matter  of  various  deeds  and  authorities, 
we  have  no  concern  here.  There  was  a  charge  also 
that  certain  members  of  the  legislature  were  induced 
to  vote  for  the  act  enabling  the  land  to  be  sold,  on  the 
promise  that  they  should  share  in  the  proceeds. 

The  case  finally  came  to  the  Supreme  Court  of  the 
United  States  and  Chief  Justice  Marshall  delivered 
the  opinion. 


238  THE    PUBLIC    CONSCIENCE 

The  Chief  Justice,  while  deploring  the  contamina- 
tion of  the  sources  of  legislation  in  an  infant  republic, 
remarks  "  How  far  a  court  of  justice  would  be  compe- 
tent, on  proceedings  instituted  by  the  state  itself,^  to 
vacate  a  contract  thus  formed,  and  to  annul  rights 
acquired,  under  that  contract,  by  third  persons  having 
no  notice  of  the  improper  means  by  which  it  was  ob- 
tained, is  a  question  which  the  court  would  approach 
with  much  circumspection.  It  may  well  be  doubted 
how  far  the  validity  of  a  law  depends  upon  the  motives 
of  its  framers,  and  how  far  the  particular  inducements, 
operating  on  members  of  the  supreme  sovereign  power 
of  a  state,  to  the  formation  of  a  contract  by  that 
power,  are  examinable  in  a  court  of  justice." 

The  legislature  of  Georgia  was  a  party  to  this  trans- 
action "  If  (it)  was  not  bound  to  submit  its  preten- 
sions to  those  tribunals  which  are  established  for  the 
security  of  property,  and  to  decide  on  human  rights, 
if  it  might  claim  for  itself  the  power  of  judging  in  its 
own  case,  yet  there  are  certain  great  principles  of  jus- 
tice, whose  authority  is  universally  acknowledged, 
that  ought  not  to  be  entirely  disregarded." 

The  legislature  of  Georgia,  like  a  private  person, 
cannot  disregard  the  rules  of  equity.  If  this  sale  was 
brought  about  by  fraud,  nevertheless  there  were  inno- 
cent third  parties  to  whom  conveyance  was  made, 
whose  property  rights  must  be  protected.  "  In  this 
case  the  legislature  may  have  had  ample  proof  that  the 
original  grant  was  obtained  by  practises  which  can 
1  Not  the  case  here. 


RIGHTS  AS  BETWEEN  TWO  PARTIES      239 

never  be  too  much  reprobated,  and  which  would  have 
justified  its  abrogation  so  far  as  respected  those  to 
whom  crime  was  imputable.  But  the  grant,  when 
issued,  conveyed  an  estate  in  fee  simple  to  the  grantee, 
clothed  with  all  the  solemnities  which  law  can  bestow." 

It  was  claimed  that  one  legislature  was  competent 
to  repeal  the  acts  of  its  predecessor  without  doubt; 
but,  if  an  act  be  done  under  a  law,  a  succeeding  legisla- 
ture cannot  undo  it.  "  When  a  law  is  in  its  nature  a 
contract,  when  absolute  rights  have  rested  under  that 
contract,  a  repeal  of  the'  law  cannot  devest  those 
rights." 

"A  grant,  in  its  own  nature,  amounts  to  an  extin- 
guishment of  the  right  of  the  grantor,  and  implies  a 
contract  not  to  reassert  that  right." 

"  It  is  then  the  unanimous  opinion  of  the  court,  that, 
in  this  case  the  estate  having  passed  into  the  hands 
of  a  purchaser  for  a  valuable  consideration,  without 
notice,  the  state  of  Georgia  was  restrained,  either  by 
general  principles  which  are  cormnon  to  our  free  in- 
stitutions, or  by  the  particular  provisions  of  the  Con- 
stitution of  the  United  States,  from  passing  a  law 
whereby  the  estate  of  the  plaintiff  in  the  premises  so 
purchased  could  be  constitutionally  and  legally  im- 
paired and  rendered  null  and  void. 

The  judgment  of  the  lower  court  was  affirmed,  with 
costs;  thus  establishing  the  validity  of  the  contract. 


240  THE    PUBLIC    CONSCIENCE 

Nuisance 
BAMFORD  V.  TURNLEY 

Exchequer  Chamber,  1862 

(Reported  3  B.  &  S.,  62.) 

This  was  a  case  where  damages  were  claimed  be- 
cause of  a  nuisance  which  was  injuring  the  property 
of  the  plaintiff". 

It  appeared  on  the  trial  in  1860  that  certain  lands 
in  Norwood  were  offered  for  sale  in  lots  at  public  auc- 
tion in  accordance  with  certain  printed  particulars  and 
conditions  of  sale.  One  of  the  statements  was  as 
follows :  "  There  is  abundance  of  brick  earth  and 
gravel,  which  .  .  .  present  an  unusually  advantageous 
opportunity  of  carrying  out  safe  and  profitable  build- 
ing operations." 

One  Captain  Strode  bought  one  of  the  lots,  built  a 
house  upon  it,  and  leased  it  to  the  plaintiff  in  this 
case.  Shortly  after,  the  defendant  bought  several  lots. 
In  1860  he,  having  in  mind  to  use  some  of  the  clay  in 
building,  erected  what  is  called  a  "  clamp  of  bricks  " 
as  far  away  as  possible  from  the  plaintiff's  house. 
Bricks  had  previously  been  burned  on  many  lots  in  the 
neighborhood  even  on  the  site  of  the  plaintiff's  house. 
The  defendant  had  endeavored  to  make  the  necessary 
burning  of  bricks  as  little  offensive  as  possible. 

The  Lord  Chief  Justice  directed  the  jury  that,  "  if 
they  thought  the  spot  was  convenient  and  proper,  and 


RIGHTS  AS  BETWEEN  TWO  PARTIES     241 

the  burning  of  the  bricks  was,  under  the  circumstances, 
a  reasonable  use  by  the  defendant  of  his  own  land," 
the  defendant  would  be  entitled  to  a  verdict  —  which 
was  accordingly  given. 

The  plaintiff  appealed. 

Williams,  J.,  delivered  the  opinion.  He  said  that  the 
judgment  was  plainly  based  upon  a  passage  in 
Comyn's  Digest  upon  the  Case  for  a  Nuisance.  "  So 
an  action  does  not  lie  for  a  reasonable  use  of  my  right, 
though  it  be  to  the  annoyance  of  another;  as  if  a 
butcher,  brewer,  etc.,  use  his  trade  in  a  convenient 
place,  though  it  be  to  the  annoyance  of  his  neighbor," 
but  Hide,  C.  J.,  has  said,  "  a  tan  house  is  necessary,  for 
all  men  wear  shoes,  and  nevertheless  it  may  be  pulled 
down  if  it  be  erected  to  the  nuisance  of  another."  As 
the  use  of  an  offensive  trade  will  be  indictable  if  it  be 
carried  on  in  an  inconvenient  place,  i.e.,  a  place  where 
it  incommodes  a  multitude  of  persons,  so  it  will  be 
actionable  if  it  be  carried  on  in  an  inconvenient  place, 
i.e.,  a  place  where  it  greatly  incommodes  an  individual. 
The  question  is,  what  is  inconvenient?  In  arguing  for 
the  plaintiff  Mr.  Mellish  pointed  out  that  if  such  a 
doctrine  as  that  of  convenience  be  carried  out  "  it  must 
be  maintained  to  the  extent  that,  however  ruinous  may 
be  the  amount  of  nuisance  caused  to  a  neighbor's  prop- 
erty by  carrying  on  an  offensive  trade,  he  is  without 
redress  if  a  jury  shall  deem  it  right  to  find  that  the 
place  where  the  trade  is  carried  on  is  a  proper  and 
convenient  place  for  the  purpose." 

Bramwell,  B.,  said,  agreeing  with  Williams,  J.,  that 


242  THE    PUBLIC    CONSCIENCE 

the  judgment  should  be  reversed.  The  defendant  had 
infringed  the  maxim,  "  So  use  thine  own  as  not  to  in- 
jure what  is  another's."  The  instances  put  during  the 
argument,  of  burning  weeds,  emptying  cesspools,  mak- 
ing noises  during  repairs,  and  other  instances  which 
would  be  nuisances  if  done  wantonly  or  maliciously, 
nevertheless  may  be  lawfully  done.  Such  cases  are  not 
extreme.  There  must,  then,  be  some  principle  on  which 
such  cases  must  be  excepted.  It  seems  to  me  that 
that  principle  may  be  deduced  from  the  character  of 
these  cases,  and  in  this,  viz.,  that  those  acts  necessary 
for  the  common  and  ordinary  use  and  occupation  of 
land  and  houses  may  be  done,  if  conveniently  done, 
without  subjecting  those  who  do  them  to  an  action. 
The  present  case  does  not  come  under  this  principle. 
The  fact  that  the  nuisance  was  temporary  makes 
no  difference.  It  is  too  hard  to  establish  what  is 
temporary. 

Nor  can  it  be  claimed  that  a  thing  is  lawful  if  for 
the  public  benefit  unless  it  can  be  clearly  shown  on  the 
balance  of  loss  and  gain  to  all.  No  one  thinks  it  would 
be  right  to  take  an  individual's  land  without  compen- 
sation to  make  a  railway.  It  is  for  the  public  benefit 
that  there  should  be  railways  but  it  would  not  be 
unless  the  gain  of  having  the  railway  was  sufficient  to 
compensate  the  loss  of  land  required  for  its  site. 

If  we  look  to  analogous  cases  I  find  nothing  to 
countenance  the  defendant's  contention.  A  riparian 
owner  cannot  take  water  for  the  public  benefit;  he 
cannot  foul  it  for  the  public  benefit,  if  to  the  prejudice 


RIGHTS  AS  BETWEEN  TWO  PARTIES     243 

of  another  owner.    A  common  cannot  be  enclosed  on 
such  principle.    A  window,  the  fee  simple  of  which  is 
5s.,    cannot    be    stopped    up    by    a   building    worth 
£1,000,000,  of  the  greatest  public  benefit/ 
This  nuisance  was  not  a  case  of  necessity.^ 

Verdict  for  the  plaintiff. 

Comment.  This  is,  as  are  all  trespass  cases,  a  question 
of  relative  rights  to  property.  The  EngHsh  law  as  here 
recorded  seems  to  be  very  strict  to  protect  the  least 
thing  whose  property  character  is  established;  yet  the 
maxim  is  the  same  for  England  and  America.  ''  So  use 
thine  own  as  not  to  injure  what  is  another's."  The 
whole  difficulty  lies  in  its  application;  and  the  principle 
of  eminent  domain  would  seem  to  indicate  that  the 
English  law  would  yield  if  once  the  public  interest  grew 
sufficiently  strong,  whatever  the  prescriptive  right  of  the 
individual  might  be.  An  examination  of  practice  in 
England  during  the  recent  war  would  doubtless  support 
my  contention,  but  there  is  no  access  to  such  records 
under  present  conditions. 

1  There  is  a  difference  in  principle  between  English  and  Ameri- 
can decisions  on  this  point.  Light  and  air  are  held  to  become 
private  property  by  easement  in  England.  In  America  this  prin- 
ciple has  been  denied.    Cf.  Ely,  op  cit.,  p.  113. 

2  This  case  has  been  greatly  abridged. 


244  THE    PUBLIC    CONSCIENCE 

ST.  HELEN'S  SMELTING  CO.  v.  TIPPING 
House  of  Lords,  1865 

(Reported  11  H.  L.  C,  642.) 

This  was  an  action  brought  by  the  plaintiff,  Tipping, 
to  recover  damages  for  injuries  done  to  his  trees  and 
crops  by  their  works.  The  damage  was  done  by 
noxious  gases,  vapors,  etc.,  which  were  diffused  over 
the  lands  of  the  plaintiff.  The  plaintiff  acknowledged 
having  seen  the  large  chimney  of  the  factory  before 
he  purchased  his  land  but  he  said  that  he  did  not  know 
the  works  were  in  operation.  It  was  shown  by  the  de- 
fense that  the  whole  neighborhood  was  studded  with 
chimneys  and  that  it  was  impossible  to  say  which 
works  produced  the  injury  complained  of. 

The  judge  told  the  jury  (Mr.  Justice  Mellor  at 
Liverpool)  that  "  an  actionable  injury  was  one  pro- 
ducing sensible  discomfort;  that  every  man,  unless  en- 
joying rights  obtained  by  prescription  or  agreement, 
was  bound  to  use  his  property  in  such  a  manner  as  not 
to  injure  the  property  of  his  neighbors ;  that  there  was 
no  prescriptive  right  in  this  case ;  that  the  law  did  not 
regard  trifling  inconveniences;  that  everything  must  be 
looked  at  from  a  reasonable  point  of  view ;  and  there- 
fore, in  an  action  for  nuisance  to  property,  arising  from 
noxious  vapors,  the  injury  to  be  actionable  must  be 
such  as  visibly  to  diminish  the  value  of  the  property 
and  the  comfort  and  enjoyment  of  it.    That  when  the 


RIGHTS  AS  BETWEEN  TWO  PARTIES     245 

jurors  come  to  consider  the  facts,  all  the  circumstances, 
including  those  of  time  and  locality,  ought  to  be  taken 
into  consideration;  and  that  with  respect  to  the  latter 
it  was  clear  that  in  countries  where  great  works  had 
been  erected  and  carried  on,  persons  must  not  stand  on 
their  extreme  rights  and  bring  actions  in  respect  of 
every  matter  of  annoyance,  for  if  so,  the  business  of  the 
whole  country  would  be  seriously  interfered  with." 
The  jury  found  that  while  the  defendants'  business  was 
a  proper  one  and  conducted  in  a  proper  manner  it 
nevertheless  damaged  the  plaintiffs  and  was  not  car- 
ried on  in  a  proper  place.  They  found  for  the  plaintiff 
in  the  sum  of  £361  18s.  4^d.  Appeal  was  taken  to  the 
Exchequer  Chamber  and  judgment  affirmed.  Appeal 
was  then  taken  to  the  House  of  Lords,  which  again 
affirmed  the  judgment  on  the  ground  that  the  property 
destroyed  was  very  valuable  and  that  there  was  no 
excuse  for  the  offensive  vapors  and  other  harmful 
effects  produced  by  the  works  in  question. 

Comment.  The  last  sentence  in  this  case  is  sufficient 
comment  on  it.  The  damage  done  was  very  great  and 
unnecessary. 


GILBERT  V.  SHOWERMAN 
Supreme  Court  of  Michigan,  1871 

(Reported  23  Mich.,  448.) 

This  was  a  suit  to  enjoin  the  operation  of  a  flour 
mill.    The  plaintiff  had  owned  and  Uved  in  a  building 


246  THE    PUBLIC    CONSCIENCE 

for  more  than  twenty  years.  The  lower  floor  was 
rented  as  a  store  or  warehouse,  the  upper  part  as  a 
dwelling  by  the  owner.  Adjoining  his  building  was  one 
in  which  had  been  set  up  machinery  and  fixtures  to 
run  a  flour  mill  and  such  a  mill  was  being  run.  The 
plaintiff  maintained  that  it  was  a  nuisance  in  that  it 
shook  his  house^  weakened  its  walls,  rattled  the  win- 
dows and  dishes  in  his  home,  made  much  extra  soot 
and  dirt  and  many  unpleasant  noises,  etc. 

The  evidence  showed  that  the  two  buildings  were 
part  of  a  long  continuous  block  in  the  city  of  Detroit, 
all  the  buildings  of  which  appeared  to  have  been  con- 
structed for  business  purposes.  There  have  been 
numerous  families  occupying  parts  of  houses  but  the 
tendency  has  been  for  them  to  remove  to  make  way 
for  business.  There  was  no  question  that  the  mill  did 
cause  annoyance  to  the  plaintiff  but  there  was  no  lack 
of  due  care  in  the  management  of  the  mill.  The  pres- 
ent bill  was  filed  more  than  a  year  after  the  machinery 
was  put  in  and  more  than  eight  months  after  the  mill 
was  in  operation. 

The  defendants  acted  in  good  faith  in  installing  their 
mill  but  the  plaintiff  was  doubtless  injured  to  some 
extent  both  personally  and  in  business. 

Cooley,  J.,  said:  "Generally  speaking,  it  may  be 
said  that  every  man  has  a  right  to  the  exclusive  and 
undisturbed  enjoyment  of  his  premises,  and  to  the 
proper  legal  redress  if  this  enjoyment  shall  be  inter- 
rupted or  diminished  by  the  act  of  others.  The  re- 
dress, if  the  injury  is  slight  or  merely  casual,  or  if  it 


RIGHTS  AS  BETWEEN  TWO  PARTIES      247 

is  in  any  degree  involved  in  doubt,  should  be  by 
action  for  the  recovery  of  damages;  but  if  permanent 
in  its  nature,  so  that  by  persistence  in  it  the  wrong 
doer  might,  in  time,  acquire  rights  against  the  owner, 
it  is  admissible  for  the  court  of  Chancery  to  interfere 
by  injunction,  provided  the  injury  is  conceded  or 
clearly  established." 

The  Court  further  found  that  the  defendants  were 
carrying  on  a  legitimate  business  in  a  proper  place  and 
that  there  were  other  businesses  in  the  block  quite  as 
likely  to  be  offensive  against  which  no  complaint  was 
made. 

"  We  cannot  shut  our  eyes  to  the  obvious  truth  that 
if  the  running  of  this  mill  can  be  enjoined,  almost  any 
manufactory  in  any  of  our  cities  can  be  enjoined  upon 
similar  reasons.  Some  resident  must  be  incommoded 
or  annoyed  by  almost  any  of  them.  In  the  heaviest 
business  quarters  and  among  the  most  offensive  trades 
of  every  city,  will  be  found  persons  who,  from  motives 
of  convenience,  economy  or  necessity,  have  taken  up 
there  their  abode;  but  in  the  administration  of  equi- 
table police,  the  greater  and  more  general  interests 
must  be  regarded  rather  than  the  inferior  and  special. 
The  welfare  of  community  cannot  be  otherwise  sub- 
served and  its  necessities  provided  for.  Minor  incon- 
veniences must  be  remedied  by  actions  for  the  recov- 
ery of  damages  rather  than  by  the  severe  process  of 
injunction." 

The  case  was  dismissed  and  costs  were  assessed  but 
the  dismissal  was  without  prejudice  to  any  proceeding 


248  THE    PUBLIC    CONSCIENCE 

the  plaintiff  might  be  advised  to  take  at  law,  as,  e.g. 
action  for  damages. 

Comment.  The  court's  opinion  here  is  sufficiently  exphcit 
and  agrees  well  with  what  comment  we  have  made  on 
Bamjord  v.  Turnley  —  but  it  deals  wholly  with  the 
question  of  injunction  and  does  not  invalidate  an  action 
for  damages  which  may  well  lie  even  if  the  offender  may 
legitimately  continue  his  business.  —  Cf.  the  numerous 
suits  for  damages  when  railroads  of  all  sorts  are  built. 


STURGES  V.  BRIDGMAN 
Court  of  Appeals  in  Chancery,  1879 

(Reported  11  Ch.  Div.,  852.) 

The  plaintiff  in  this  case  was  a  physician  who  built 
a  consulting  room  in  his  garden  right  against  the  estab- 
lishment of  a  confectioner  who,  with  his  father  before 
him,  had  occupied  the  premises  and  carried  on  the 
business  for  sixty  years.  The  physician  did  not  build 
a  separate  wall  of  his  own,  accordmg  to  the  defendants, 
and  he  was  constantly  annoyed  by  the  noise  made  in 
two  large  marble  mortars  set  in  brick  work  against  the 
wall  which  separated  confectionery  and  consulting 
room. 

The  physician  complained  that  the  noise  seriously 
interfered  with  his  business,  particularly  preventing 
him  from  examining  patients  by  auscultation  for 
diseases  of  the  chest. 

In  May,  1878,  Jessel,  M,  R.,  held  that  the  plaintiff 


RIGHTS  AS  BETWEEN  TWO  PARTIES     249 

was    entitled    to    an    injunction.      The    defendant 
appealed. 

Thesiger,  L.  J.,  confirmed  the  injunction,  maintaining 
that "  an  enjoyment  which  a  man  cannot  prevent  raises 
no  presumption  of  consent  or  acquiescence."  "  Until 
the  noise  became  an  actionable  nuisance,  which  it  did 
not  at  any  time  before  the  consulting  room  was  built, 
the  basis  of  the  presumption  of  the  consent,  viz.,  the 
power  of  prevention,  physically,  or  by  action,  was 
never  present." 

It  might  be  objected  that  if  such  a  principle  were 
carried  to  its  logical  consequences,  it  might  result  in 
serious  practical  inconveniences.  A  man  might  go 
into  an  unsavory  neighborhood  and  build  a  private 
residence  and  then  complain  of  nuisances.  But 
"  whether  anything  is  a  nuisance  or  not,  is  a  question 
to  be  determined,  not  merely  by  an  abstract  considera- 
tion of  the  thing  itself,  but  in  reference  to  its  circum- 
stances ;  what  would  be  a  nuisance  in  Belgrave  Square 
would  not  necessarily  be  so  in  Bermondsey ;  and  where 
a  locality  is  devoted  to  a  particular  trade  or  manufac- 
ture carried  on  by  the  traders  and  manufacturers  in  a 
particular  and  established  manner  not  constituting  a 
public  nuisance,  judges  and  juries  would  be  justified  in 
finding,  and  may  be  trusted  to  find,!  that  the  trade 
or  manufacture  so  carried  on  in  that  locality  is  not  a 
private  or  actionable  wrong."  ^ 

Appeal  dismissed  with  costs. 

1  Cf.  also  Wilde,  J.,  in  Dana  v.  Valentine,  5  Met.  8,  14  (1842). 
"Another  objection  to  the  defendant's  title  by  prescription  is  that 


250  THE    PUBLIC    CONSCIENCE 

Comment.  Thesiger's  comment  establishes  the  principle 
that  one  cannot  protest  against  that  which  merely  may 
some  day  be  a  disadvantage  to  him. 


Negligent    Destruction 

BROWN  V.  ROBBINS 

Exchequer,  1859 

(Reported  4  H.  &  N,  186.) 

Plaintiff  had  a  house  one  lot  east  from  Bill  Hay 
Lane.  The  lot  next  the  lane  had  been  mined  in  1831 
and  in  1838  the  lot  west  of  the  lane  was  mined,  pillars 
and  ribs  of  coal  being  left  as  supports.  In  1857,  the 
defendant  again  worked  the  lot  west  of  the  lane,  re- 
moving the  pillars  and  ribs  and  the  plaintiff's  house 
began  to  crack.  The  jury  found  that  the  defendant 
knew  that  the  plaintiff's  house  and  the  mined  lots  had 
been  there  for  twenty  years  and  that  the  defendant's 
mining  had  caused  the  plaintiff's  land  to  slide.  The 
land  would  have  slid  had  there  been  no  house  on  it  at 
all.  The  land  slid  of  its  own  weight.  It  was  held  that 
the  plaintiff  had  acquired  the  right  of  support  of  his 
house  and  that  he  should  recover  damages.^ 


until  lately  the  plaintiffs  suffered  no  damage  from  the  alleged  nui- 
sance, and  therefore  could  not  interpose  to  prevent  its  continuance. 
But  it  is  very  clear  that  where  a  party's  right  of  property  is  in- 
vaded, he  may  maintain  an  action  for  the  invasion  of  his  right, 
without  proof  of  actual  damage." 

1  Cf.  judgment  of  Erie,  C.  J.,  in  Smith  v.  Thackerah  (Reported 
L.  R.  1  C.  P.,  564)  "  There  is  no  doubt  that  a  right  of  action  accrues 


RIGHTS  AS  BETWEEN  TWO  PARTIES     251 

Comment.  Reiteration  of  principle  —  that  is  wrong  which 
injures  a  neighbor,  but  the  further  principle  given  that 
such  injuries  as  are  the  necessary  result  of  proper  action 
with  one's  lawful  property  are  not  to  be  considered 
actionable. 


STOCKPORT    WATER    WORKS    COMPANY    v. 
POTTER 

Exchequer,  1864 

(Reported  3  H.  &  C,  300.) 

The  plaintiffs  had  taken  water  from  the  Mersey 
River  for  the  town  of  Stockport  ever  since  1853.  In 
that  year  they  had  acquired  the  right  from  the  Wood- 


whenever  a  person  interferes  with  his  neighbor's  rights,  as,  for  ex- 
ample, by  stepping  on  his  land  or  interfering  with  his  right  to  vote. 
But  for  a  man  to  dig  a  hole  in  his  own  land  is  in  itself  a  perfectly 
lawful  act  of  ownership,  and  it  only  becomes  a  wrong  if  it  injures 
his  neighbor;  and  since  it  is  the  injury  itself  which  gives  rise  to 
the  right  of  action,  there  can  be  no  right  of  action  unless  the 
damage  is  of  appreciable  amount.'' 

Also  —  Williams,  J.,  in  Robertson  v.  Youghiogheny  Coal  Co., 
172  Pa.  566,  571 — "The  grant  of  a  mineral  estate,  or  of  the 
right  to  mine,  is  a  grant  of  the  right  to  penetrate  the  earth  in 
search  of  the  mineral  stratum,  and,  when  found,  to  quarry  and  re- 
move the  mineral  in  a  proper  manner.  Such  injuries  as  are  the 
necessary  result  of  this  process  do  not  afford  a  cause  of  action  to 
the  owner  of  the  surface.  If  his  springs  are  drained  or  his  well 
destroyed  as  the  natural  result  of  the  excavation  made  to  reach 
and  remove  the  coal,  he  has  no  right  to  complain.  But  a  sale  of 
all  the  coal  under  a  tract  of  land  is  not  in  terms  nor  by  necessary 
impHcation  a  release  of  the  right  to  surface  support  any  more  than 
the  sale  of  the  first  story  of  a  building,  two  or  more  stories  in 
height,  would  be  a  release  of  the  floor  so  sold  from  its  visible  servi- 
tude to  the  remainder  of  the  building." 


252  THE    PUBLIC    CONSCIENCE 

bank  Estate  which  had  been  in  the  habit  of  taking 
water  for  fourteen  years  previous  to  1853.  The  de- 
fendants, owning  property  further  up  the  stream,  had 
fouled  the  stream,  not  mahciously  but  in  the  pursuit  of 
their  legitimate  business.  No  riparian  rights  had  been 
granted  to  the  Stockport  Waterworks  Company,  as 
they  acquired  none  of  the  shore  but  only  what  was 
known  as  the  Nab  Pool  Weir  and  the  right  to  draw 
water.  The  plaintiffs  were  neither  themselves  riparian 
owners  nor  the  assignees  of  such.  Pollock,  C.  B.,  in 
his  opinion  said,  among  other  things :  "  It  seems  clear 
that  the  rights  which  a  riparian  proprietor  has  with 
respect  to  the  water  are  entirely  derived  from  his 
possession  of  land  abutting  on  the  river.  If  he  grants 
away  any  portion  of  his  land  so  abutting,  then  the 
grantee  becomes  a  riparian  proprietor  and  has  similar 
rights.  But  if  he  grants  away  a  portion  of  his  estate 
not  abutting  on  the  river,  then  clearly  the  grantee  of 
the  land  would  have  no  water  rights  by  virtue  merely 
of  his  occupation.  Can  he  have  them  by  express 
grant?  It  seems  to  us  that  the  true  answer  to  this  is 
that  he  can  have  them  against  the  grantor  but  not  so 
as  to  sue  other  persons  in  his  own  name  for  an  infringe- 
ment of  them."  He  also  said  that  there  had  been  no 
continuous  use  of  the  water  for  twenty  years  constitut- 
ing what  is  called  an  easement.  The  water  had  been 
used  by  the  plaintiffs  only  since  1853.  Before  that  it 
was  used  by  others  in  the  enjoyment  of  riparian  rights. 
Moreover  there  was  no  right  by  prescription,  adverse 
holding  against  all  comers,  since  the  right  had  been  dis- 
puted and  an  award  made. 


RIGHTS  AS  BETWEEN  TWO  PARTIES     253 

Judgment  was  therefore  given  for  the  defendants 
but  Bramwell,  B.,  in  a  dissenting  opinion,  said,  "  Sup- 
pose the  person  fouling  the  water  was  not  a  riparian 
proprietor  but  a  mere  wrong  doer,  why  should  not  an 
action  lie  against  him?  I  can  see  no  reaspn,  nor  can 
I  see  that  his  being  a  proprietor  makes  any  difference. 
Upon  these  considerations  (Others  had  been  cited, 
G.c.c.)  it  seems  to  me  this  action  is  maintainable.  I 
think  it  might  fairly  be  asked  to  what  extent  I  would 
carry  the  principle  upon  which  I  decide  this.  My 
answer  is,  to  the  extent  to  which  the  analogous  case 
extends  of  a  grantee  of  a  right  of  way.  Where  a  gran- 
tee of  a  right  of  way  could  maintain  an  action  for  dis- 
turbance of  his  way,  so  do  I  think  the  grantee  of  a 
right  of  water  might.  ...  I  am  aware  of  the  case  of 
Keppell  V.  Bailey,  2  Myle  &  K.  516,  and  agree  that  new 
rights  of  property  cannot  be  created,  but  I  think  that 
rule  does  not  interfere  with  the  present  case.  There, 
an  owner  of  land  was  resisting  a  burden  put  upon  it 
by  a  former  owner,  and  it  was  held  that  burden  could 
not  be  attached  to  the  land  in  the  hands  of  the  assignee. 
Here,  no  doubt,  it  can  be,  that  is  to  say  on  the  lands 
of  the  riparian  proprietors  (the  Messrs.  Marsden, 
owners  before  1853).  The  question  is  not  with  them, 
but  with  one  who  would  be  a  wrong  doer  if  he  had  no 
riparian  estate  or  occupation,  and  is  not  the  less  so 
because  he  has  (i.e.  the  defendant). 

Baron  Bramwell  would  give  the  decision  to  the 
plaintiffs. 


254  THE    PUBLIC    CONSCIENCE 

Comment.  Baron  Bramwell's  analogy  seems  to  be  sound; 
but  the  whole  case  depends  upon  what  the  property  rights 
were.  The  majority  opinion  settles  that  for  us.  Had 
the  Stockport  Water  Works  been  publicly  owned,  prob- 
ably the  defendants  would  have  been  found  guilty; 
but  on  the  ground  of  public  policy,  not  because  they  were 
violating  any  individual's  property  rights. 


ROBERTS  V.  GROYFRAI  DISTRICT  COUNCIL 
Chancery  Division,  1899 

(Reported   1   Ch.,  583.) 

The  plaintiff  owned  and  occupied  an  ancient  water 
mill.  At  the  head  of  the  stream  which  supplied  it  was 
a  lake  from  which  the  defendants  desired  to  supply  sur- 
rounding towns  with  water  for  domestic  purposes. 
They  tried  to  get  the  plaintiff's  permission  but  this 
was  refused.  Defendants  then  dammed  up  the  lake, 
leaving  a  place  for  the  water  to  get  out.  It  was  con- 
ceded that  the  flow  was  more  regular  than  it  had  been 
before  and  was  sufficient  for  the  use  of  the  plaintiff. 
Indeed  it  was  somewhat  better  for  his  mill  than  it 
had  been. 

But  the  plaintiff  sought  an  injunction  to  restrain  the 
defendants  from  taking  any  water  from  the  lake  and 
from  doing  any  act  whereby  the  flow  of  water  in  the 
stream  through  and  by  the  plaintiff's  mill  and  lands 
would  be  diminished. 

The  defendants  claimed  riparian  rights  including  the 
right   to   supply   their   district   with   water.     They 


RIGHTS  AS  BETWEEN  TWO  PARTIES      255 

admitted  that  their  action  would  cause  the  abstraction 
of  about  one-sixteenth  of  the  water  in  the  lake. 

Kekewich,  J.,  held  that  the  law  on  the  subject  had 
been  threshed  out  again  and  again.  "A  riparian  pro- 
prietor or  owner  is  entitled  to  say  that  the  water  which 
flows  by  his  property  and  which  is  used  by  him  for 
ordinary,  or  it  may  be  for  extraordinary,  purposes  shall 
flow  in  the  future  as  it  had  done  in  the  past.  This 
seems  to  be  the  common  law  right;  and  unless  that 
common  law  right  has  been  affected  by  statute  he  is 
entitled  to  insist  upon  it."  Judgment  for  the  plaintiff 
later  affirmed  in  (1899)  2  Ch.  p.  614,  where  Lindley, 
M.  R.,  said,  "  The  defendants  have  in  fact  most  mate- 
rially altered  the  flow  of  the  water  to  which  the  plain- 
tiff is  entitled.  His  rights  are  infringed  by  persons  who 
admit  that  they  have  no  right  to  do  what  they  are  do- 
ing; and  under  the  circumstances  unless  the  in- 
fringers are  prepared  to  stop  what  they  are  doing,  an 
injunction  to  restrain  them  is  almost  a  matter  of  course. 
...  I  cannot  appreciate  the  difference,  for  the  present 
purpose,  between  claiming  a  right  to  do  a  thing,  and 
saying,  '  I  admit  I  have  no  right  to  do  it,  but  I  intend 
to  go  on  doing  it.'  If  there  is  any  difference,  it  is 
rather  against  the  man  who  admits  that  he  has  no 
right  to  do  a  thing,  but  insists  on  doing  that  which  he 
admits  to  be  wrong." 

Comment.  This  case  appears  at  first  sight  to  be  decided 
adversely  to  the  principle,  "  So  use  thine  own,  etc.,"  be- 
cause it  was  granted  that  the  flow  of  water  to  the  mill 
was  improved,  if  anything,  by  the  change;  but  it  is 


256  THE    PUBLIC    CONSCIENCE 

important  to  add  that  the  flow  of  water  had  been  mate- 
rially changed  and  that  it  would  be  dangerous  indeed  to 
allow  others  to  be  the  judge  of  what  our  desires  were. 
If  the  plaintiff  here  may  be  judged  a  somewhat  disoblig- 
ing person  he  was  nevertheless  strictly  within  his  rights. 


PITTS  V.  LANCASTER  MILLS 

Supreme  Judicial  Court  of  Massachusetts,  1847 

(Reported  13  Met.,  156.) 

The  declaration  alleged  that  Samuel  Carter  was 
seized  and  possessed  of  a  close,  water  mill,  ancient  dam 
and  the  water  privileges  thereto  appertaining,  situate 
on  the  north  branch  of  Nashua  River,  in  Lancaster, 
and  the  right  of  having  the  whole  water  of  said  stream 
flow  without  obstruction,  for  the  benefit  of  said  mill, 
and  of  having  the  uninterrupted  use  and  occupation 
of  said  mill  and  privileges ;  and  that  said  Carter,  being 
so  seized  and  possessed,  leased  the  premises  for  a  term 
of  years  to  Hiram  Pitts,  who  underlet  the  same  to  the 
plaintiffs;  that  the  defendants,  a  corporation  estab- 
lished by  statute  in  1845,  wrongfully  built  and  raised, 
above  its  usual  height,  their  dam,  situate  across  said 
stream,  above  the  mill,  etc.,  occupied  by  the  plaintiffs 
and  thereby  hindered  the  water  from  flowing  in  its 
usual  course,  and  thereby,  for  the  space  of  two  days  in 
June  and  four  days  in  July  wholly  cut  off  the  water 
from  the  plaintiff's  mill.  The  case  was  submitted  to 
the  court  upon  the  following  agreed  statement  of  facts: 


RIGHTS  AS  BETWEEN  TWO  PARTIES      257 

"  The  plaintiffs  are  the  lessees  of  said  mill,  dam  and 
privileges.  The  defendants  were  the  owners  of  a 
privilege  on  the  said  stream,  above  the  mill  of  the 
plaintiffs,  whereon  a  mill  had  stood  for  some  years; 
they  erected  a  new  mill  thereon,  and,  for  the  purpose 
of  using  the  whole  power,  raised  the  dam  higher  than 
it  had  formerly  been,  and  kept  the  water  back,  so 
long  as  was  necessary  to  fill  their  pond  and  no  longer. 
To  have  delayed  filling  said  pond,  until  a  freshet  or 
flow  of  water  should  have  raised  the  same,  would  have 
endangered  said  dam ;  and  by  keeping  the  water  back 
as  aforesaid,  the  operations  of  the  plaintiffs'  mill  were 
retarded  or  wholly  suspended." 

Shaw,  C.  J.,  said:  "  Every  proprietor  of  land,  through 
which  a  current  of  water  flows,  has  a  right  to  the  use 
of  it  on  his  own  land,  amongst  other  things  for  mill 
purposes,  making  such  reasonable  use  of  it,  and  of  the 
mill  power  furnished  by  it,  as  he  can  consistently  with 
a  like  reasonable  use  by  other  proprietors,  above  and 
below,  through  whose  land  it  passes.  What  is  a  reason- 
able use  must  depend  on  circumstances;  such  as  the 
width  and  depth  of  the  bed,  the  volume  of  water,  the 
fall,  previous  usage,  and  the  state  of  improvement  in 
manufactories  and  the  useful  arts. 

"  It  appears  .  .  .  that  having  erected  a  new  dam, 
which  they  had  a  right  to  do,  they,  (the  defendants) 
detained  the  water  no  longer  than  was  necessary,  etc. 
—  this  was  not  an  unreasonable  use."  ^ 

Judgment  for  defendants. 

1  Cf.  also  Wheatley  v.  Chrisman,  24  Pa.  298,  302  (1855). 


258  THE    PUBLIC    CONSCIENCE 

"  The  proposition  of  the  defendant  was,  that  he  had 
a  legal  right  to  use  a  reasonable  quantity  of  the  water 
for  the  purposes  of  his  business.  The  court  replied 
that  his  business  might  reasonably  require  more  than 
he  could  take  consistently  with  the  rights  of  the  plain- 
tiff :  We  cannot  see  how  or  on  what  principle  the  cor- 
rectness of  this  can  be  impugned.  The  necessities  of 
one  man's  business  cannot  be  the  standard  of  another's 
rights  in  a  thing  which  belongs  to  both.  The  true  rule 
was  given  to  the  jury.  The  defendant  had  a  right  to 
such  use  as  he  could  make  of  the  water  without  mate- 
rially diminishing  it  in  quantity  or  corrupting  it  in 
quality.    If  he  needed  more  he  was  bomid  to  buy  it." 

Comment.  The  decision  here  seems  to  be  in  contradiction 
of  the  preceding  case  of  Roberts  v.  Groyfrai,  etc.  The 
latter  is  an  English  casC;  the  present  one  is  American, 
but  Wheatley  v.  Chrism/in  here  cited  agrees  rather  with 
the  Roberts  case  and  it  also  is  American.  There  is  thus 
no  harmony  obtainable  here. 


Property  —  Accidental    or    Negligent 
Destruction 

CITIZENS  RAPID  TRANSIT  CO.  v.  DEW 

100  Tennessee,  317,  1898 

(Milbum's  Curious  Cases,  p.  310.) 
A  valuable  bird  dog  was  killed  in  plain  sight  of  the 
conductor  and  motorman  (one  person)  on  the  highway 
known  as  the  Charlotte  Pike.    The  dog  was  running 


RIGHTS  AS  BET^VEEX  TvVJ  PAHTIES      259 

along  the  pike  some  one  hundred  and  fifty  yards  in 
front  of  the  plaintiff's  vehicle  when  he  started  across 
the  trolley  track.  He  saw  some  little  birds  and  stopped 
to  "  set  "  or  "  point  "  them.  While  thus  absorbed  the 
trolley  car  came  noiselessly  upon  him  not  sounding 
its  bell  or  making  any  effort  to  stop.  The  dog  was  so 
badly  injured  that  his  master  shot  him  and  then 
brought  suit  for  damages. 

The  negligence  of  the  motorman  was  plainly  estab- 
lished. The  dog  was  not  a  trespasser  and  it  was  per- 
fectly proper  for  his  master  to  put  him  out  of  his 
misery  —  so  held  the  court  of  appeals,  the  master  hav- 
ing been  awarded  damages  in  the  lower  court. 

Much  effort  was  made  to  establish  the  worthlessness 
of  dogs/  but  "  it  is  a  matter  of  common  knowledge  " 
that  certain  strains  add  materially  to  if  they  do  not 
quite  establish  the  value  of  dogs,,  horses,  etc.  This 
was  a  valuable  dog  and  the  lower  court  rightfully 
awarded  damages  of  $250.00. 

Recovery    for    Negligence 

Judge  Brown  in  Perpich  v.  Leetonia  Mining  Co.,  112 
B.  L.  S.  151.  It  is  well  established,  though  perhaps 
not  by  a  uniform  line  of  decisions  by  all  the  courts, 
that  when,  through  the  negligence  of  one  person, 
another  is  placed  in  imminent  peril  of  his  life,  a  third 
person  standing  by,  who  successfully  rescues  or  unsuc- 

1  Dogs  have  had  their  status  as  property  established  by  statute 
in  many  states  and  they  are  now  generally  accepted  as  having  value. 
Cf.  Ely.  op  cit.,  p.  Ill  for  references  to  the  statutes  and  various 
decisions. 


260  THE    PUBLIC    CONSCIENCE 

cessfuUy  attempts  to  rescue  the  imperilled  person  may- 
recover  for  injuries  received  by  him  in  the  attempt,  in 
an  action  against  the  one  whose  negligence  imperilled 
the  life  of  the  rescued  person,  unless  it  appears  that 
the  attempt  to  rescue  was  clearly  one  of  rashness  or 
recklessness  under  the  circumstances  presented. 

The  authorities  are  collected  in  a  note  to  Corbin  v. 
CifAj  of  Philadelphia,  49  L.  R.  A.  715. 

Comment.    The  fact  that  money  damages  can  be  collected 
puts  this  in  the  property  classification. 

Taxation 

In  Kirtland  v.  Hotchkiss,  100  U.  S.  491,  it  was  held 
that  a  state  (in  this  case  Connecticut)  can  tax  its 
citizens  in  any  way  which  does  not  conflict  with  the 
Constitution  of  the  United  States;  and  that  the  Con- 
stitution does  not  prohibit  the  taxation  of  its  citizens 
for  debts  held  by  them  against  a  non-resident. 

KENTUCKY  RAILROAD  TAX  CASES 

115  U.  S.  321 

State  statutes  which  provide  for  the  raising  of  money 
by  assessment  and  collection  of  taxes,  which  provide 
for  the  proper  protection  of  owners  and  offer  them  the 
opportunity,  in  a  suit  at  law  for  the  collection  of  the 
tax,  to  judicially  contest  the  validity  of  the  proceed- 
ing, do  not  necessarily  deprive  owners  of  their  property 
"  without  due  process  of  law."     Nor  are  different 


NATURAL  LAW  IN  PROPERTY  OFFENSES  261 

Classifications  of  property  a  denial  of  the  "  equal  pro- 
tection of  the  laws  "  if  they  provide  for  the  impartial 
application  of  the  same  means  and  methods  to  all  con- 
stituents of  each  class. 

THE  NATURAL  LAW  IN  PROPERTY  OFFENSES 

All  property  offenses  seem  to  be  variations  of  theft. 
The  essential  act  is  to  take  to  oneself  what  belongs  to 
another.  We  have  no  concern  with  the  definition  of 
property.  The  civil  law  has  many  interesting  things  to 
tell  us  of  the  distinction  between  property  in  a  thing 
and  possession  of  it;  but  in  itself  this  distinction  does 
not  interest  us,  nor  are  we  concerned  either  to  uphold 
or  to  attack  the  institution  of  private  property. 
Through  all  the  changes  which  the  conception  of  pri- 
vate property  has  undergone,  and  is  now  undergoing,  a 
most  admirable  and  interesting  account  of  which  can  be 
found  in  Professor  Richard  T,  Ely's  book  "  Property 
and  Contract,"  the  various  types  of  offenses  here  indi- 
cated have  persisted.  The  particular  offense  is  often 
an  ephemeral  matter.  I  think  that  my  seven  main 
classifications  are  permanent.  They  must  hold  wher- 
ever the  institution  of  property  holds,  and  that  will  be 
everywhere  —  because  even  under  Communism  of  a 
more  extreme  type  than  we  know  of  historically  or 
dream  of  as  an  ideal,  property  would  be  in  the  com- 
munity and  it  would  be  both  possible  and  probable  that 
men  would  offend  against  it. 

The  nature  of  private  property  is  indeed  most 
illuminatingly  set  forth  by  the  mere  statement  of  the 


262  THE    PUBLIC    CONSCIENCE 

different  kinds  of  offenses  against  it;  but  there  is  no 
interesting  gradation  as  in  killing,  between  those  kinds 
invariably  condemned  and  those  which  are  universally 
approved.  We  may,  to  be  sure,  note  that  there  is  made 
a  different  logical  classification  from  that  under  killing, 
since  that  classification  was  based  upon  different  atti- 
tudes of  society  toward  killing  and  degrees  of  assault, 
throughout  human  history.  The  Spartans  taught 
their  children  to  steal  and  made  discovery  the  only 
crime,  but  our  knowledge  of  this  people  is  after  all 
very  slight  and  from  remote  sources.  Theft  is  univer- 
sally a  crime,  punished  with  death  until  modern  times, 
or  with  penalties  so  severe  that  death  would  seem 
preferable. 

The  gradations  are  perhaps  as  follows: 

1  Taking  possession  of  enemy  property  in  war,  or. 
when  unhampered  by  commercial  treaties,  by 
fraud  or  deceit  in  time  of  peace,  is  not  condemned 
by  the  group.  "  Spoiling  the  Egyptians  "  has  ever 
been  considered  meritorious  by  the  group. 

2  Burglary,  arson,  brigandage,  highway  robbery, 
because  accompanied  with  violence,  and  all  forms 
of  larceny  which  by  their  nature  threaten  the  in- 
stitution of  property  itself,  and  those  forms  which 
are  peculiarly  dangerous  to  life,  like  horse  stealing 
in  border  states,  are  severely  condemned  by  the 
group,  but  no  longer  punished  by  death. 

3  Frauds,  appropriation  by  compulsion,  breaches 
of  trust,  attacks  upon  personality  —  while  highly 


RIGHTS  AS  BETWEEN  TWO  PARTIES      263 

differentiated  by  the  law  as  to  exact  punishment, 
are  classifiable  together  as  offenses  which  society- 
does  indeed  often  punish  with  great  severity ;  but 
there  has  been  little  poignancy  of  emotion  over 
them,  and  the  plain  thief  who  steals  a  pair  of  shoes 
or  a  loaf  of  bread  suffers  social  condemnation 
of  a  kind  frequently  not  visited  upon  the  offenders 
in  these  classes. 

The  attitude  of  the  civil  law  toward  the  inn- 
keeper's lien  is  strongly  analogous  to  its  approval 
of  self-defense  in  killing  cases.  The  innkeeper  may 
take  the  law  into  his  own  hands  to  the  extent  of  re- 
taining the  property  of  a  guest  until  all  just 
charges  made  by  him  are  paid.  But  he  cannot  sell 
the  property  at  will  to  satisfy  his  claim;  and  prop- 
erty might  be  left  with  him  so  long  that  the  cost 
of  keeping  it  would  be  more  than  it  was  worth. 
In  that  case  he  could  bring  the  matter  before  the 
proper  court  which  would  order  the  property  sold 
to  pay  his  bill.  His  inability  to  go  to  an  extreme 
in  recovering  his  property  thus  is  comparable  to 
the  refusal  of  the  law  to  permit  a  man  in  self- 
defense  to  do  more  than  defend  himself. 

Those  property  offenses  which  I  have  classed* 
under  7  —  "  Rights  as  between  two  parties,  etc.," 
show  by  the  very  title  that  there  is  not  here  neces- 
sarily anything  approaching  theft.  There  may  in 
these  cases,  especially  those  concerned  with  tres- 
pass, riots,  nuisances  and  negligent  destruction  of 
property,  often  be  something  very  close  to  malice. 


264  THE    PUBLIC    CONSCIENCE 

This  may  even  be  true  in  tax  cases,  eminent  do- 
main, contracts  and  infringement  of  trade  marks 
—  but  there  need  not  be.  Hence,  as  property- 
cases,  they  approach  the  indifference  point.  The 
whole  question  to  be  resolved  by  a  court  is  —  In 
whom  does  the  property  vest  in  reality?  or  per- 
haps—  How  will  social  good  best  be  conserved? 
This  last  is  evidently  the  case  with  eminent  do- 
main. And  while  we  have  a  constitutional  guar- 
antee that  no  man's  property  may  be  taken  from 
him  without  due  process  of  law  and  proper  com- 
pensation, this  is  an  ideal  only.  A  notable  ex- 
ample of  the  failure  of  this  constitutional  guaran- 
tee was  in  the  appropriation  by  the  United  States 
of  the  whole  of  the  compensation  given  by  France 
for  the  destruction  of  American  shipping  at  the 
time  of  the  French  Revolution,  No  claims  against 
the  United  States  were  allowed  for  about  one  hun- 
dred years;  and  then  only  a  very  small  amount 
was  appropriated  by  Congress  for  the  purpose  of 
payment  —  and  no  interest  was  allowed. 

(Note  that  there  must  always  be  damages  in 
this  class  —  though  there  be  no  guilt.) 
6  One  can  detect  no  logic  in  the  gradation  of  penal- 
ties for  infringement  of  property  rights.  It  is 
hopeless  to  attempt  to  bring  order  out  of  this 
chaos.  Penalties  vary  in  the  different  states  and 
in  different  countries.  Some  are  exceedingly 
severe  and  others  amazingly  light.  They  have  just 
"  growed  "  like  Topsy  in  Mrs.  Stowe's  romance. 


RIGHTS  AS  BETWEEN  TWO  PARTIES      265 

To  be  sure,  the  penalties  for  forgery  and  breaches  of 
trust  are  very  heavy,  much  heavier  than  for  petit 
larceny  or,  in  some  cases,  even  for  grand  larceny,  but 
there  can  be  no  doubt  that,  socially,  the  forger  and 
the  embezzler  are  more  respectable  than  the  plain  thief 
—  and  there  is  a  glamour  still  about  the  brigand  and 
the  highway  robber  which  certainly  does  not  attach  to 
the  burglar  or  the  "  fire  bug." 

One  may  with  some  confidence  conclude  that  the 
offenses  against  property  are  equally  with  those  against 
life,  offenses  against  the  group.  This  will  more  prom- 
inently appear  in  security  cases.  Property  cases  are, 
after  all,  somewhat  obvious.  When  one  has  said 
"  thief,"  he  has  said  the  last  word.  The  thief  cannot 
be  tolerated ;  though  it  has  taken  the  world  a  long  time 
to  realize  that  the  "  respectable  "  forms  of  theft  are 
as  dangerous  as,  yes,  much  more  dangerous  than, 
simple  larceny. 

Three  points 

(1)  Steal  anything  or  take  anything  from  an  enemy 
of  the  group;  but  only  in  so  far  as  he  is  plainly 
enemy. 

(2)  All  forms  of  theft  within  the  group  will  be  pun- 
ished —  in  the  degree  that  they  threaten  the  sta- 
bility of  the  group  —  but  this  is  modified  by  feudal 
custom  and  failure  to  realize  what  really  threatens 
the  group. 

(3)  Eminent  domain  expresses  the  principle  that  all 
property,  in  the  final  analysis  inheres  in  the  group. 

Salus  populi  suprema  lex. 


In  the  Preservati 


I.    Preservation  o)  Life  and  Limb. 


OFFENSES   AGAINST   SECURITY 

In  the  Preservation  of  Life  and  Limb,  and  the  Preservation  of  Property,  of  Reputation 
and  Public  Order 

(Attacks  on  the  army  and  navy,  "the  flag,"  courts, 
police  and  quarantine 

Treason  (security  of  State  threatened) 

Mutiny  (        "      "  ship,  little  state  pro  tempore) 

False  imprisonments 

Unfair  trials 

Neglect  of  precautions 

Violations  of  fire  and  factory  laws,  etc. 
(Employment  of  minors) 

Violations  of  Pure  Food  and  Drug  Act,  of  traffic  regu- 
lations, of  ordinances  relating  to  Railroads,  Rivers 
and  Harbors,  highways 

Excessive  hours  of  labor,  especially  on  railroads,  steam- 
ship lines,  etc. 

Neglect  of  safety  devices,  sanitaiy  precautions,  etc. 

Carrying  concealed  weapons 

Practising  medicine  without  a  license,  etc. 

NegUgent  running  of  automobiles,  steam  engines,  etc. 
(Hcense  cases) 

NegUgence  in  electric  wiring,  etc. 

Negligence  in  keeping  up  fences  and  other  boundaries 

Keeping  unsafe  animals 

Negligence  in  hunting,  etc 

Forgery 
Counterfeiting 
Raising  checks 
Kiting  checks 
Falsifying  accounts 
Using  mails  to  defraud 
Stealing    from    mails,    express    com- 
panies, etc. 
Insurance  frauds 
"Blue  Sky"  laws 
Creating  panics,  publishing  false  news 

Combinations  in  restraint  of  trade 

Cornering  markets 

"Gentlemen's  Agreements"  to  evade 

law  or  defraud 
Rebates 

Strikes  and  lockouts 
Labor    Unions    and    Manufacturers* 


II    Preservation  of  property  {cf.  also 
"Offenses  against  property") 


(a)  Attacks 
upon  credit 


■nipt.K 


///.   Public  Order  (Decency) 


Bnlj<.-ry  :ind  ( 

[  Kidnapping 
Adultery  (wife  property  of  husband  — 
(c)  Personal  many  laws  of  adultery  based  on  that) 

]  Seduction 
I  Akenating  affections 
(  Breach  of  promise  of  marriage 

{Blackmail 
Libel 
Slander 
Invading  privacy 

Maintaining  or  encouraging  commercial  prostitution 
(Red  Light  Districts,  Mann  White  Slave  Law,  etc.) 
Public  nuisances  (noises,  smells,  sounds'! 
Maintaining  or  erecting  spite  fences 
Indecent  exposure 

"       publication 
Keeping  disorderly  houses,  saloons,  etc. 
Violating  Sunday  laws 
Unnatural  practices,  sodomy,  etc. 
Blasphemy,  disturbing  public  worship,  etc. 
Desecrating  graves,  public  monuments,  etc. 
Neglecting  education 
Breaches  of  the  peace 
Cruelty 
r  thnt  the  above  classifit^ation  i: 


tfora 


tch  all" 


PART    III 

PRESERVATION    OF    SECURITY 


SECURITY  A  SUPREME  NEED 

Gilchrist,  C.  J.,  in  Beach  v.  Hancock,  27  New  Hamp. 
223:  "One  of  the  most  important  objects  to  be  at- 
tained by  the  enactment  of  laws  and  the  institutions 
of  civilized  society  is,  each  of  us  shall  feel  secure  against 
unlawful  assaults.  Without  such  security  society 
loses  most  of  its  value.  Peace  and  order  and  domestic 
happiness,  inexpressibly  more  precious  than  mere  forms 
of  government,  cannot  be  enjoyed  without  the  sense 
of  perfect  security." 

Comment.  Gilchrist's  opinion  is  a  classic  expression.  It 
may  be  taken  as  a  generalization  of  the  highest  import- 
ance which  will  illuminate  all  the  cases  in  this  section. 

It  is  obvious  that  no  body  of  laws  can  give  this  "  sense 
of  perfect  security ;  "  but  the  content  of  the  laws  and  of 
judgments  will  indicate  at  least  the  purpose  of  their 
enactment. 


I.    SECURITY    IN    LIFE    AND    LIMB 
ATTACK  ON  ARMY 

New  York  Times,  February  19,  1916. 

The  proprietors  of  the  weekly  journal  Bystander 
were  fined  £100,  the  former  editor,  Vivian  Carter,  was 
fined  £50,  and  Lieutenant  Bernard,  cartoonist,  £50, 
today  for  publishing  a  cartoon  depicting  a  British 

269 


270  THE    PUBLIC    CONSCIENCE 

soldier  lying  intoxicated  beneath  a  tree  and  clasping 
a  bottle  of  rum.  Beneath  the  cartoon  were  the  words, 
"  Reported  Missing." 

The  charge  was  preferred  under  the  Defence  of  the 
Realm  act  on  the  ground  that  publication  of  the  car- 
toon was  prejudicial  to  discipline  and  recruiting.  An 
appeal  was  entered. 

Comment.  Probably  no  notice  would  have  been  taken  of 
such  a  cartoon  had  it  not  been  published  at  such  a  time 
in  the  nation's  history. 

Attack  on  Courts 
King's  Bench,  1688 

(Reported  Comberbach,  46.    Beale,  71,  2d  ed.) 

A  man  was  indicted  for  words  spoken  of  a  justice  of 
peace  (a  buffle-headed  fellow)  and  an  exception  was 
taken  that  the  words  were  not  indictable. 

But  the  Court  held  that,  because  it  appears  they 
were  spoken  of  him  in  the  execution  of  his  office,  the 
indictment  is  good.  All  actions  for  slandering  a  jus- 
tice in  his  office  may  be  turned  into  indictments. 

STATE  V.  HOLT 
Supreme  Judicial  Court  of  Maine,  1892 

(Reported  84,  Maine,  509.     Beale,  78,  2d  ed.) 

The  defendant,  knowing  that  one  Fred  N.  Treat  had 
been  summoned  to  appear  before  and  give  evidence  to 


SECURITY    IN    LIFE    AND    LIMB         271 

the  Supreme  Court,  and  intending  to  obstruct  the 
course  of  justice,  caused  Treat  to  become  intoxicated 
and  then  removed  him  so  that  he  could  not  give 
testimony. 

Walton,  J.,  held  that  "  a  wilfull  and  corrupt  attempt 
to  prevent  the  attendance  of  a  witness  before  any  law- 
ful tribunal  organized  for  the  administration  of  jus- 
tice is  an  indictable  offense  at  common  law." 

Comment.  Various  opinions  quoted  uphold  the  principle 
that  anything  tending  to  obstruct  the  course  of  public 
justice  is  indictable  at  common  law.  Bribing,  intimidat- 
ing, and  persuading  witnesses,  to  prevent  them  from  tes- 
tifying, or  to  prevent  them  from  attending  court,  have 
been  among  the  most  common  and  the  most  corrupt  of 
this  class  of  offenses. 


Authority   of   the   State  —  Courts 
STATE  OF  KANSAS  v.  GEORGE  LEWIS 

(19  Kan.  260.    1897.) 

The  defendant  was  imprisoned  in  the  county  jail  of 
Atchison  County  on  the  criminal  charge  of  burglary  in 
the  second  degree,  awaiting  a  trial  upon  such  a  charge; 
and  while  so  imprisoned  he  broke  jail  and  escaped. 

Afterward  a  warrant  was  duly  issued  for  his  arrest 
upon  the  charge  of  breaking  jail  and  custody.  He 
was  apprehended,  hand-cuffed  and  taken  before  a  jus- 
tice for  a  preliminary  examination.  He  was  then  tried 
on  the  charge  of  burglary  and  acquitted.    The  county 


272  THE    PUBLIC    CONSCIENCE 

attorney  then  had  him  arrested  on  the  charge  of  break- 
ing jail  and  custody.  He  endeavored  to  escape  this 
charge  on  several  grounds;  but  his  pleas  were  all  swept 
aside. 

The  statute  reads  "  If  any  person,  lawfully  impris- 
oned in  any  county  jail  or  other  place  of  imprisonment, 
or  in  the  custody  of  any  officer  upon  any  criminal 
charge,  before  conviction  for  the  violation  of  any  penal 
statute,  shall  break  such  prison  or  custody  and  escape 
therefrom,  he  shall  upon  conviction  be  punished  by 
confinement  and  hard  labor  for  a  term  not  exceeding 
two  years,  or  in  a  county  jail  not  less  than  six  months." 

The  offense  was  in  flouting  the  laws  of  the  state. 
It  made  no  difference  that  he  was  not  guilty  of  the  first 
offense  with  which  he  was  charged.  Both  the  court  of 
first  instance  and  the  court  of  appeals  found  him 
guilty. 

Comment.  For  unlawful  imprisonment  there  is  the  legal 
remedy  of  habeas  corpus.  Where  imprisonment  is  law- 
ful there  would  be,  logically,  no  one  more  certain  to  be 
punished  than  the  man  who  should  endeavor  to  escape. 
The  error  of  the  state  —  if  it  was  an  error  —  in  charg- 
ing defendant  with  burglary  is  no  excuse  for  his 
contemptuous  attitude  towards  the  institutions  under 
which  all  justice  is  administered,  insofar  as  it  is  admin- 
istered at  all. 


SECURITY    IN    LIFE    AND    LIMB         273 

QUARANTINE 

STATE  V.  MAYOR  AND  ALDERMEN 
OF   KNOXVILLE 

Supreme  Court  of  Tennessee  —  1883. 

(Reported  12  Lea,  146.    Beale,  p.  494,  2d  ed.) 

In  1882-3  the  small-pox  as  an  epidemic  prevailed 
to  a  considerable  extent  in  Knoxville,  Tenn.  Among 
the  quarantine  provisions  established  a  small-pox  hos- 
pital was  installed  at  the  fair  grounds,  and  the  bedding, 
bedsteads,  clothing,  etc.,  of  persons  suffering  with  the 
disease,  were  burned  in  pits  dug  for  the  purpose.  The 
burning  was  done  some  four  hundred  yards  from  the 
nearest  houses  but  the  smoke  and  scent  from  the  burn- 
ing clothing,  etc.,  was  offensive.  The  Mayor  and  alder- 
men were  indicted  for  a  nuisance  and  found  guilty. 
On  appeal  to  the  Supreme  Court  this  judgment  was 
reversed  and  a  new  trial  ordered. 

Freeman,  J.,  in  his  opinion  acknowledges  the  nuis- 
ance on  the  basis  of  the  facts  but  questions  whether 
there  were  not  perhaps  sufficient  justification  and  au- 
thority for  the  acts. 

It  was  clear  that  the  means  taken  by  the  defendants 
were  calculated  to  put  an  end  to  the  epidemic  as  soon 
as  possible,  and  that  they  were  approved  by  hospital 
authorities. 

"  If  this  be  so,  then  the  simple  question  is,  whether 
parties  using  such  means  so  accredited,  in  good  faith, 


274  THE    PUBLIC    CONSCIENCE 

shall  be  held  criminally  liable  if  they  should  produce 
temporary  inconvenience  to  other  parties  nearby.  .  .  . 
The  loss  to  the  individuals  was  only  a  temporary 
one  .  .  .  offensive  though  it  was ;  yet  if  this  was  done 
in  order  to,  and  did  reasonably  tend  to,  prevent 
the  spread  of  a  loathsome  and  dangerous  disease  .  .  . 
then  it  is  too  clear  to  doubt  that  the  interest  of  the 
life  of  many  cannot  be  permitted  to  be  imperilled  that 
others  may  enjoy  the  air  untainted  by  smoke  from 
clothing  infected  by  the  disease  being  burned  at  a  rea- 
sonably safe  distance  from  their  dwellings.  If  you 
may  rightfully  destroy  the  house  in  which  a  man 
dwells  in  order  to  prevent  the  spread  of  a  fire  or  the 
ravages  of  a  pestilence,  it  follows  you  may  much  more 
destroy  for  a  time  the  salubrity  of  the  air,  provided 
it  shall  tend  reasonably  to  the  result  demanded  by  the 
public  interest." 

Comment.    Security  of  group  clearly  made  paramount,  no 
matter  what  damage  may  be  done  to  individuals. 

Treason 

In  the  United  States  the  Constitution  defines  and 
limits  the  crime  by  declaring  that  "  treason  against 
the  United  States  shall  consist  only  in  levying  war 
against  them  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort." 

In  English  Statutes  (25  Edw.  3  c.  2),  treason  is  de- 
clared to  consist  (1)  in  compassing  or  imagining  the 
death  of  the  King  or  Queen  or  their  eldest  son  or  heir; 


SECURITY    IN    LIFE    AND    LIMB         275 

(2)  in  violating  the  King's  companion,  or  the  King's 
eldest  daughter  unmarried,  or  the  wife  of  the  ICing's 
eldest  son  or  heir;  (3)  in  levying  war  against  the  King 
in  his  realm;  (4)  in  adhering  to  the  King's  enemies 
in  his  realm,  giving  them  aid  and  comfort  in  his  realm 
or  elsewhere;  (5)  slaying  the  chancellor,  treasurer,  or 
the  King's  justices  of  the  one  bench  or  the  other,  jus- 
tices in  eyre,  or  justices  of  the  assize,  and  all  other 
justices  assigned  to  hear  or  determine,  being  in  their 
places  and  doing  their  offices. 

The  crime  was  further  extended  in  England  by  later 
statutes,  particularly  11  Vict.  C.  12  P.  11,  which  in 
effect  declares  it  to  be  treason  for  any  person  or  per- 
sons within  the  realm  or  without  to  compass,  imagine, 
invent,  devise  or  intend  death  or  destruction,  or  any 
bodily  harm  tending  to  death  or  destruction,  maim  or 
wounding,  imprisonment,  or  restraint,  of  the  person  of 
the  King,  or  his  heirs,  successors,  and  such  compass- 
ings,  imaginings,  inventions,  devices  or  intentions,  or 
any  of  them,  to  express,  utter  or  declare,  by  publishing 
any  printing  or  writing,  or  by  any  overt  act  or  deed. 

Courts  have  been  unwilling  to  recognize  any  defense 
to  treason.  The  only  defense  is  in  the  case  where  it 
is  committed  under  duress  and  compulsion,  as  in 
United  States  v.  Greiner,  26  Fed.  Cas.  No.  15,262,  4 
Phila.  (Pa.)  396. 

The  statutory  punishment  for  treason  is  death,  or, 
at  the  discretion  of  the  Court,  imprisonment  at  hard 
labor  for  not  less  than  five  years,  together  with  a  mini- 
mum fine  of  $10,000  and  incapacity  to  hold  any  office 
under  the  United  States. 


276  THE    PUBLIC    CONSCIENCE 


THE   SINN   FEIN   REBELLION 

Information  Quarterly,  July,  1916,  p.  228. 

On  April  22,  1916,  Sir  Roger  Casement  landed  in 
Ireland  from  a  German  submarine,  but  was  promptly- 
arrested.  Almost  simultaneously,  a  serious  revolt  broke 
out  in  Dublin.  The  insurgents  issued  a  proclamation 
of  independence  and  revolt  against  England.  Risings 
occurred  in  other  parts  of  Ireland  as  well.  Ireland  w^as 
placed  under  martial  law  and  on  May  1st  the  ''  seven 
days  "  revolt  came  to  an  end  with  the  surrender  of  Pro- 
visional President  Pearse  and  his  orders  to  his  followers 
to  lay  down  their  arms.  Much  damage  was  done  and 
many  lives  were  lost. 

On  May  3d,  Premier  Asquith  announced  that,  after 
a  court  martial,  Patrick  H.  Pearse,  Thomas  J.  Clarke 
and  Thomas  McDonough  had  been  shot  that  morning 
in  the  Tower  of  London ;  others  had  been  sentenced  to 
penal  servitude.  Later,  others  were  executed  and  fif- 
teen sentenced  to  death  had  their  sentences  commuted 
to  ten  years'  penal  servitude.  The  premier  stated  that 
three  classes  of  men  had  been  executed.  1.  Those  who 
signed  the  proclamation  of  the  provisional  government 
—  actual  leaders  of  the  rebellion,  five  out  of  seven  hav- 
ing been  shot.  2.  Men  in  command  of  rebels  actually 
shooting  down  troops  and  police  (124  killed,  388 
wounded,  and  9  missing)  and  3.  Murderers.  The  two 
remaining  signers  of  the  proclamation  were  later  shot. 

May  10th  the  government  admitted  that  F.  Sheehy 


SECURITY    IN    LIFE    AND    LIMB         277 

Skefifington,  editor  of  The  Irish  Citizen,  and  two  other 
journalists,  had  been  executed  without  the  knowledge 
of  the  military  authorities  and  before  martial  law  was 
actually  in  operation.  The  officer  responsible  for  the 
shooting  acted  without  the  knowledge  of  his  superiors 
and  would  be  court  martialed.  He  was  later  court 
martialed,  found  "  guilty  but  insane  "  and  sent  to  a 
criminal  lunatic  asylum. 

Sir  Roger  Casement  was  tried  for  high  treason  May 
15th.  The  hearings  were  public.  He  was  found  guilty, 
having  endeavored  to  raise  an  Irish  regiment  for  Ger- 
many among  Irish  prisoners  in  Germany  and  having 
landed  with  hostile  intent  against  the  government  of 
Great  Britain,  in  Ireland. 

Sir  Roger  appealed  his  case,  alleging.  First,  that  no 
crime  had  been  committed  under  the  statute  of 
Edward  III  by  which  he  was  tried,  because  no  such 
crime  as  treason  "  without  the  realm  "  was  indicated 
in  the  statute;  Second,  that  the  Lord  Chief  Justice 
erred  in  the  use  of  the  term  "  aiding  and  comforting 
the  enemy;  "  Third,  because  the  Lord  Chief  Justice  in 
his  charge  to  the  jury  did  not  properly  set  forth  the 
defendant's  side  of  the  case. 

The  appeal  was  dismissed  after  hearing  the  attorneys 
of  Sir  Roger.  Many  signed  a  petition  for  clemency  and 
Justice  Darling  announced  that  he  would  sit  on  July 
28th  to  "  hear  a  possible  application  on  behalf  of  the 
convict."  The  nature  of  the  application  was  not  dis- 
closed. On  the  following  day  the  defense  abandoned 
any  contemplated  action. 


278  THE    PUBLIC    CONSCIENCE 

Sir  Roger  Casement  was  hanged  at  9  o'clock  in  the 
morning  of  August  3d,  1916,  in  Pentonville  jail. 

Comment.  There  can  be  no  doubt  that  all  of  these  men 
were  traitors  to  the  British  Government,  in  spite  of  the 
technical  defense  of  Sir  Roger.  They  had  for  years 
talked  seditiously  and  had  fomented  a  spirit  of  denial 
of  the  right  of  the  British  Government  to  rule  Ireland. 
Sir  Roger  received  his  title  from  the  Crown  and  none  of 
those  sentenced  had  any  other  civil  standing  or  allegiance. 

New  York  Times,  February  27,  1916. 

Mrs.  Nellie  Best,  Secretary  of  the  Women's  Anti- 
Conscriptionist  League,  was  sentenced  today  to  six 
months'  imprisonment  in  the  Westminster  Police  Court 
for  circulating  literature  urging  men  not  to  enlist. 

On  being  asked  whether  she  was  represented  by 
counsel,  Mrs.  Best  said: 

"  I  am  defended  by  the  Lord,  who  told  us  not  to  kill." 

"  I  have  been  responsible  for  keeping  hundreds  of 
lads  from  recruiting  into  the  trade  of  war/'  she  con- 
tinued, "  and  each  night  I  have  thanked  God  for 
giving  me  the  opportunity,  and  have  asked  strength  to 
do  the  same  thing  the  next  day." 

Comment.  Mrs.  Best's  highest  allegiance  was  given  to 
what  she  believed  to  be  the  voice  of  God.  For  the  state, 
whether  theistic  or  antitheistic,  its  own  interests  are  para- 
mount. If  theistic,  it  always  claims  an  identity  of 
purpose  and  motive  with  the  will  of  its  God. 

In  September,  1775,  James  Smith,  a  judge  of  the 
Court  of  Common  Pleas  for  Dutchess  County,  New 


SECURITY    IN    LIFE    AND    LIMB         279 

York,  together  with  Coen  Smith  of  the  same  place, 
were  "  handsomely  tarred  and  feathered  "  for  acting  in 
open  contempt  of  the  resolves  of  the  County  Commit- 
tee. "  The  judge  undertook  to  sue  for,  and  recover  the 
arms  taken  from  the  Tories  by  order  of  said  Commit- 
tee, and  actually  coimnitted  one  of  the  Committee, 
who  assisted  at  disarming  the  Tories,  which  enraged 
the  people  so  much,  that  they  rose  and  rescued  the 
prisoner,  and  poured  out  their  resentment  on  this 
villainous  retailer  of  the  law.  (Cutler's  Lynch  Law, 
p.  70,  quoting  from  Frank  Moore's  ''  Diary  of  The 
Revolution.") 

At  Charleston,  S.  C,  in  1776,  "  John  Roberts,  dis- 
senting minister,  was  seized  on  suspicion  of  being  an 
enemy  to  the  rights  of  America,  when  he  was  tarred 
and  feathered;  after  which,  the  populace,  whose  fury 
could  not  be  appeased,  erected  a  gibbet  on  which  they 
hanged  him,  and  afterwards  made  a  bonfire,  in  which 
Roberts,  together  with  the  gibbet,  was  consumed  to 
ashes."    (Ibid.,  p.  7L) 

TREASON  TREATED  BY  LYNCH  LAW 

In  the  days  of  the  American  Revolution  there  were 
in  the  mountainous  sections  of  Virginia  both  many 
desperadoes  who  stole  horses  and  committed  other  out- 
rages, and  also  many  convinced  Tories  who  opposed 
the  patriots  with  skill  and  vigor.  There  were  none  but 
county  courts  nearby  and  these  were  merely  examin- 
ing courts.    In  order  to  have  felonies  tried  it  was  neces- 


280  THE    PUBLIC    CONSCIENCE 

sary  to  take  prisoners  to  Williamsburg,  more  than  two 
hundred  miles  away  from  Bedford  County  where 
Charles  Lynch  lived. 

After  deliberation  with  his  neighbors,  he  decided  to 
take  matters  into  his  own  hands  "  to  punish  lawless- 
ness of  every  kind,  and  so  far  as  possible  to  restore 
peace  and  security  of  their  community."  A  court  was 
formed  of  which  Lynch  was  the  head  and  William 
Preston,  Robert  Adams,  Jr.,  and  James  Callaway  were 
assessors. 

Regular  legal  procedure  was  employed.  When  news 
of  the  invasion  of  Virginia  by  Cornwallis  was  received, 
there  arose  great  activity  among  the  Tories.  "A  con- 
spiracy was  formed  to  overthrow  the  county  organiza- 
tion and  seize,  for  the  use  of  Cornwallis  on  his  arrival, 
the  stores  that  Lynch  had  collected  for  Greene's  army 
in  North  Carolina."  Several  men  were  arrested,  tried 
and  condemned  to  severe  penalties.  One  of  them, 
Robert  Cowan,  who  had  formerly  been  a  fellow  justice 
on  the  county  bench  and  who  was  believed  to  have 
been  the  ring  leader,  was  sentenced  to  a  year  in  prison 
and  to  pay  a  heavy  fine. 

Even  if  this  court  could  be  considered  a  regular 
county  court,  it  had  transcended  its  powers.  "After 
the  war  the  Tories  who  had  suffered  at  his  hands, 
threatened  to  prosecute  Colonel  Lynch  and  his  friends. 
To  avoid  lawsuits  and  as  a  means  of  finally  settling 
the  matter.  Lynch  brought  the  whole  matter  before  the 
Virginia  legislature."  The  legislature  passed  an  act  in- 
demnifying and  exonerating  them  all.     Similar  acts 


SECURITY    IN    LIFE    AND    LIMB         281 

were  passed  at  other  places  and  times  under  similar 
conditions.  (Cf.  Cutler's  Lynch  Law,  pp.  25  ff.  and 
passim.) 

Comment.  In  justification  for  classifying  this  as  a  case  of 
Treason,  note  that  the  act  was  called  "  An  act  to  indem- 
nify certain  persons  in  suppressing  a  conspiracy  against 
this  state  "  and  that  it  says  "  certain  evil  disposed  per- 
sons .  .  .  formed  a  conspiracy  and  did  actually  attempt 
to  levy  war  against  this  state." 

It  is  evident  that  in  earlier  days,  notably  in  the 
17th  Century,  charges  of  treason  were  frequently  pre- 
ferred on  purely  political  grounds.  The  offenses  were 
great  enough  to  deserve  punishment  but  the  trials  were 
conducted  with  such  manifest  unfairness  (Cf.  Stephen, 
Vol.  I  passim)  that  even  partisans  were  revolted.  And 
these  cases  are  not  contradictory  of  my  claim  that 
treason  is  always  punished  with  death,  when  known 
to  be  such,  at  least  in  time  of  war. 

It  is  pertinent  here  to  set  down  the  opinion  of  Sir 
J.  F.  Stephen  (Vol.  I,  p.  425) :  "  Criminal  justice  was 
originally  a  rude  substitute  for,  or  limitation  upon, 
private  war,  the  question  of  guilt  or  innocence,  so  far 
as  it  was  entertained  at  all,  being  decided  by  the  power 
of  the  suspected  person  to  produce  compurgators  or  by 
his  good  fortune  in  facing  an  ordeal.  The  introduction 
of  trial  by  combat,  though  a  little  less  irrational,  was 
in  principle  a  relapse  towards  private  war,  but  it  was 
gradually  restricted  and  practically  superseded  many 
centuries  before  it  was  formally  abolished." 


282  THE    PUBLIC    CONSCIENCE 

Modem  criminal  procedure  described  in  Ch.  XII, 
p.  428  —  for  the  past  150  years  now  — 

"  Litigation  of  all  sorts,  and  especially  litigation 
which  assumes  the  form  of  a  criminal  trial,  is  a  substi- 
tute for  private  war,  and  is,  and  must  be,  conducted 
in  a  spirit  of  hostility  which  is  often  fervent  and  even 
passionate,  etc/'    (P.  432.) 

Mutiny 

Mutiny  is  to  usurp  the  command  of  a  vessel  from 
the  master  or  deprive  him  of  it  for  any  purpose,  by 
violence,  or  in  resisting  him  in  the  free  and  lawful 
exercise  of  his  authority;  the  overthrowing  of  the 
legal  authority  of  the  master  with  an  intent  to  remove 
him  against  his  will  and  the  like.  See  Thompson  v. 
The  Stacey  Clarke,  54  Fed.  533. 

In  the  United  States,  mutiny  or  revolt  is  made  a 
crime  by  statute.  (See  Par.  5360  U.  S.  Comp.  St. 
(1901),  P.  3640.) 

The  Act  of  April  30th,  1790  (1  U.  S.  St.  at  L.  114), 
by  which  the  making  of  a  revolt  in  a  ship  was  first 
made  a  crime,  declared  that  if  a  seaman  should  make 
revolt  in  a  ship,  he  would  be  adjudged  a  pirate  and  a 
felon,  and  upon  conviction  should  suffer  death,  without 
enumerating  the  acts  that  would  constitute  a  revolt. 
The  Courts,  however,  declared  that  the  crime  was  com- 
mitted when  the  crew,  or  any  part  of  them,  threw  off 
all  obedience  to  the  commander  and  took  forcible  pos- 
session of  the  vessel  by  assuming  and  exercising  the 


SECURITY    IN    LIFE    AND    LIMB         283 

command  and  navigation  of  her,  or  by  transierring 
their  obedience  from  the  one  lawfully  in  command  of 
her  to  one  who  had  usurped  command.  {U.  S.  v. 
Haskell,  26  Fed.  Cas.  No.  15,321.) 


False  Imprisonment 

False  imprisonment  is  the  unlawful  and  total  re- 
straint of  the  liberty  of  the  person.  The  imprisonment 
is  false  in  the  sense  that  it  is  unlawful.  The  right 
violated  by  this  tort  is  the  freedom  of  the  right  of 
locomotion.  The  right  invaded  by  false  imprisonment 
is  of  such  character  that  the  liability  of  the  wrong-doer 
is  not  dependent  primarily  upon  intent. 

Neither  malice  nor,  ordinarily,  want  of  probable 
cause,  is  an  essential  element  of  the  right  of  action. 

Arrest  is  not  essential.  (See  Garner  v.  Squires,  62 
Kan.  321.) 

Arrest  is  sufficient  notwithstanding  immediate  re- 
lease.   {Harness  v.  Steele,  159  Ind.  286.) 

False  imprisonment  may  be  committed  by  words 
alone,  or  by  acts  alone,  or  by  both ;  it  is  not  necessary 
that  the  individual  be  actually  confined  or  assaulted 
or  even  touched.  (See  Camer  v.  Knowles,  17  Kan. 
436;  Bennett  v.  Sweet,-  171  Mass.  600;  Johnson  v. 
Tompkins,  13  Fed.  Cas.  7,416.) 

The  wrong  may  be  committed  at  any  time  or  place, 
as  in  Woodward  v.  Washburn,  3  Den.  (N.  Y.)  369.  The 
locking  of  the  door  of  a  bank  at  a  usual  and  known 
hour  was  held  to  be  a  sufl&cient  wrongful  detention. 


284  THE    PUBLIC    CONSCIENCE 

Whenever  it  appears  that  the  person  complaining 
was  restrained  without  legal  authority  for  an  appre- 
ciable time,  however  short,  a  case  of  false  imprisonment 
is  made  out,  as  in  Callahan  v.  Searles,  78  Hun  (N.  Y.) 
238,  a  few  minutes  were  deemed  sufficient. 


Unfair  Trials 

STOKES  V.  STATE 

Tennessee,  1875 

(5  Baxt.  619.    Milbum's  Curious  Cases,  p.  304.) 

The  prisoner  was  indicted  for  the  murder  of  Mrs. 
Housen  in  the  Criminal  Court  of  Davidson.  He  was 
tried,  convicted  of  murder  in  the  second  degree,  and 
sentenced  to  twenty  years  in  the  penitentiary. 

Mrs.  Housen  was  taken  from  her  house  at  night  and 
carried  some  distance  and  hung  to  what  the  witnesses 
term  a  "  hog  pole."  Near  the  place  where  she  was 
hung  a  track  was  found  in  the  mud,  made  by  a  bare 
foot.  The  inference  from  all  the  surrounding  circum- 
stances is  that  the  person  who  made  that  track  was 
one  of  the  parties  engaged  in  the  murder. 

Lea,  Sp.  J.,  was  convinced  that  the  jury  in  part  based 
their  conviction  upon  the  belief  that  the  track  found 
in  the  mud  was  made  by  the  foot  of  the  prisoner. 
During  the  trial  the  prosecuting  attorney  had  a  pan  of 
soft  mud  brought  into  court  and  repeatedly  asked  the 
prisoner  to  put  his  foot  in  it.    The  court  did  not  re- 


SECURITY    IN    LIFE    AND    LIMB         285 

quire  him  to  do  this,  but  said  that  he  might  if  he 
wanted  to.  According  to  the  record  he  did  not  so  put 
his  foot  in;  his  refusal  to  do  so  may  have  seemed  evi- 
dence of  guilt  to  the  jury;  and  it  is  no  sufficient  answer 
that  the  judge  told  the  jury  that  his  refusal  was  not  to 
be  taken  as  evidence  against  him. 

The  court  of  appeals  was  satisfied  that  the  case  of 
the  prisoner  had  been  prejudiced  by  this  action,  saying, 
"  although  we  might  be  satisfied  of  the  prisoner's  guilt, 
yet  it  is  our  duty  to  see  that  he  has  a  fair  and  impartial 
trial,  and  this  he  must  have  though  costs  may  accumu- 
late and  punishment  be  long  delayed." 


Classes  of  cases  which  have  to  do  with  neglect 
on  the  part  of  employers,  etc. 

FELLOW  SERVANT  DOCTRINE  OF 
RESPONSIBILITY 

Employees  on  entering  service  take  upon  themselves 
as  incident  to  the  hiring  the  risks  from  negligence  or 
carelessness  of  their  fellow  servants.  Cunningham  v. 
Syracuse  Improvement  Co.,  20  A.  D.  171.) 

In  the  case  of  Brick  v.  Rochester,  N.  Y.,  etc.,  Ry.  Co., 
98  N.  Y.  211,  a  railroad  employee  engaged  in  travelling 
on  a  construction  train,  knowing  that  he  is  not  work- 
ing on  a  completed  road  in  good  repair,  assumes  the 
hazards  incident  to  the  same,  and  the  company  can- 
not be  held  liable  for  his  death  through  the  negligence 
of  an  employee  whose  duty  it  was  to  keep  the  track  in 


286  THE    PUBLIC    CONSCIENCE 

good  condition,  but  who  allowed  frozen  mud  to  ac- 
cumulate at  a  crossing  and  thereby  caused  a  construc- 
tion train  to  run  off  the  track. 

Comment.  This  rule  has  been  modified  by  the  Workmen's 
Compensation  Law,  and  cases  which  follow  will  indicate 
the  change. 


Master  and  Servant  —  Risk 

STREETER  v.  WESTERN  WHEELED  SCRAPER 
COMPANY 

Supreme  Court  of  Illinois,  1912 

(98  Northeastern  Reporter,  54L    112  Bui.  Lab.  St.,  69.) 

"  The  doctrine  of  the  assumption  of  risk  is  firmly 
established  as  a  part  of  the  law  of  master  and  servant. 
The  relation  of  master  and  servant  exists  only  by 
virtue  of  contract,  and  to  that  relation,  the  instant  it 
is  created,  the  law  attaches  the  doctrine  of  the  assump- 
tion of  risk.  Under  that  doctrine  the  servant  assumes 
all  the  ordinary  risks  incident  to  the  business,  all  the 
extraordinary  risks  of  which  and  of  the  danger  of  which 
he  has  knowledge,  and  all  other  obvious  risks,  and  this 
whether  any  of  such  risks  existed  at  the  time  of  his 
employment  or  may  have  come  into  existence  subse- 
quently, provided,  only,  they  have  come  to  his  knowl- 
edge. This  condition  attaches  at  the  time  of  his 
employment  and  continues  unchanged  during  his  em- 
ployment.   It  is  an  incident  of  the  relation  and  has  its 


SECURITY    IN    LIFE    AND    LIMB         287 

origin  in  the  contract  by  which  that  relation  is  formed. 
It  becomes  a  part  of  the  contract  because  the  law 
attaches  the  liability  or  obligation  to  the  contract. 

It  may  be  that  the  ground  of  the  doctrine  of  assump- 
tion of  risk,  as  well  as  of  its  extension  to  known  extraor- 
dinary risks  and  to  obvious  risks,  is  the  maxim  volenti 
non  jit  injuria;  but,  nevertheless,  it  is  only  as  an  in- 
cident of  the  contract  of  employment  —  as  a  part  of 
such  contract  —  that  it  comes  into  existence  at  all. 
A  waiver  of  the  benefit  of  the  statute  is  in  the  nature 
of  a  contract.  It  is  an  assent  to  a  change  in  the  serv- 
ant's rights  and  liability  under  his  contract  of  employ- 
ment. His  conduct  may  be  evidence  of  such  assent, 
but  it  does  not  change  the  character  of  the  relation. 

The  assumption  of  risk  by  the  servant  is  not  differ- 
ent in  its  character  from  the  obligation  of  the  master 
to  use  reasonable  care  to  furnish  the  servant  a  reason- 
ably safe  place  in  which  to  work  and  reasonably  safe 
tools  to  work  with.  In  neither  case  is  the  obligation 
an  express  term  of  the  contract,  but  in  each  case  it 
arises  out  of  the  contract  by  operation  of  law.  While 
the  master  is  bound  to  reasonable  care  for  the  safety 
of  the  servant's  place  and  tools,  he  is  not  bound  to  the 
highest  degree  of  care.  He  is  not  bound  to  furnish  a 
place  that  is  absolutely  safe  or  the  safest  possible 
place,  but  only  one  that  is  reasonably  safe.  He  is  not 
bound  to  furnish  the  safest  tools  or  machinery  or  the 
best  and  most  improved,  but  only  such  as  are  reason- 
ably safe.  The  master  may  conduct  his  business  in  his 
own  way,  though  another  way  would  be  less  hazardous 


288  THE    PUBLIC    CONSCIENCE 

and  the  servant  who  enters  his  employ  knowing  the 
method  in  which  the  business  is  conducted  assumes 
the  risk  of  such  method. 

The  doctrine  of  assumption  of  risk  in  this  class  of 
cases  is  of  modern  origin.  Its  application  to  the  law 
of  master  and  servant  was  first  suggested  by  Lord 
Abinger  in  Priestly  v.  Fowler,  3  M.  &  W.  1,  and  was 
first  declared  in  this  country  in  Farwell  v.  Boston  & 
Worcester  Railroad  Corporation,  4  Mete.  (Mass.)  49, 
38  Am.  Dec.  389,  in  1842.  The  opinion  in  that  case, 
written  by  Chief  Justice  Shaw,  places  the  doctrine 
squarely  on  the  basis  of  contract,  and  its  reasoning  has 
been  universally  adopted  by  the  courts  of  this  country. 
Speaking  of  the  exemption  of  the  master  from  liability 
to  his  servant  for  an  injury  through  the  negligence  of 
a  servant  of  the  same  master  engaged  in  a  difi'erent 
department  of  duty,  it  is  said :  "  The  master  is  not 
excused  from  liability,  in  such  case,  because  the  serv- 
ant has  better  means  of  providing  for  his  safety  when 
he  is  employed  in  immediate  connection  with  those 
from  whose  negligence  he  might  suffer,  but  because 
the  implied  contract  of  the  master  does  not  extend  to 
indemnify  the  servant  against  the  negligence  of  any 
one  but  himself,  and  he  is  not  liable  in  tort  as  for  the 
negligence  of  his  servant  because  the  person  suffering 
does  not  stand  in  the  relation  of  a  stranger,  but  is  one 
whose  rights  are  regulated  by  contract,  express  or  im- 
plied." The  mutual  rights  and  liabilities  of  master 
and  servant  were  universally  determined  upon  this 
basis  for  half  a  century  without  question,  until  legisla- 


SECURITY    IN    LIFE    AND    LIMB         289 

tion  of  the  character  of  that  now  in  question,  which 
is  of  much  more  recent  origin  than  that  of  the  assump- 
tion of  risk,  began  to  be  adopted  in  various  states. 
Then  the  theory  began  to  be  asserted  that  the  doctrine 
had  its  origin,  not  in  contract,  but  in  the  maxim  volenti 
non  fit  mjuria,  and  that  the  maxim  applied  equally 
whether  the  risk  assented  to  arose  from  mere  neglect 
or  the  violation  of  a  statutory  duty.  Whatever  the 
origin  of  the  doctrine,  in  the  end  it  is  the  servant's 
agreement  that  creates  the  assumption  of  risk.  The 
servant  must  be  volens  (that  is,  willing,  consenting, 
agreeing),  and  to  apply  the  maxim  amounts  to  nothing 
other  than  to  say  the  law  regards  the  servant  as  con- 
senting to  existing  conditions  by  continuing  his  serv- 
ice with  knowledge  of  the  conditions  (that  is,  that  he 
agrees  to  them  and  assumes  them  as  a  part  of  his  con- 
tract). It  has  been  doubted  whether  the  maxim  has 
any  application  where  there  has  been  a  breach  by  a 
defendant  of  a  statutory  obligation.  (Baddeley  v. 
Granville,  L.  R.  19  Q.  B.  Div.  425;  Yarmouth  v.  France, 
Id.  647;  Wilson  v.  Merry,  19  L.  T.  (N.  S.)  30.) 

The  passage  of  a  law  like  that  now  under  considera- 
tion implies  that  the  class  of  employees  for  whose  pro- 
tection it  was  intended  had  not  been  able  to  protect 
themselves  without  it.  Its  object,  as  indicated  by  the 
title  of  the  act,  is  to  provide  for  the  health,  safety,  and 
comfort  of  employees  in  factories,  mercantile  establish- 
ments, mills,  and  workshops  in  this  state,  and  the 
authority  for  it  is  found  in  the  police  power  of  the 
state.    The  effect  of  it  is  to  create  a  new  situation  in 


290  THE    PUBLIC    CONSCIENCE 

the  relation  of  master  and  servant,  and  to  present  the 
new  question  whether  the  doctrine  of  assumption  of 
risk  heretofore  applied  to  that  relation  should  apply- 
in  the  same  way  to  the  new  conditions.  The  duty  of 
the  master  has  been  changed.  He  may  no  longer  con- 
duct his  business  in  his  own  way.  He  may  no  longer 
use  such  machinery  and  appliances  as  he  chooses.  The 
measure  of  his  duty  is  no  longer  reasonable  care  to 
furnish  a  safe  place  and  safe  machinery  and  tools,  but 
in  addition  to  such  reasonable  care  he  must  use  in  his 
business  the  means  and  methods  required  by  the 
statute.  The  law  does  not  leave  to  his  judgment  the 
reasonableness  of  mclosing  or  protecting  dangerous 
machinery,  or  permit  him  to  expose  to  increased  and 
unlawful  dangers  such  of  his  employees  as  may  be 
driven  by  force  of  circumstances  to  continue  in  his 
employ  rather  than  leave  it  and  take  chances  on  secur- 
ing employment  elsewhere  under  lawful  conditions. 
The  guarding  of  machinery  mentioned  in  the  statute 
is  a  duty  required  of  the  master  for  the  protection  of 
his  workmen,  and  he  owes  the  specific  duty  to  each 
person  in  his  employ.  To  omit  it  is  a  misdemeanor 
subjecting  him  to  a  criminal  prosecution.  The  neces- 
sity for  such  legislation  is  suggested  by  a  consideration 
of  a  sentence  from  the  opinion  in  the  Knisley  case 
which  says:  "  There  is  no  rule  of  public  policy  which 
prevents  an  employe  from  deciding  whether,  in  view  of 
increased  wages,  the  difficulties  of  obtaining  employ- 
ment, or  other  sufficient  reasons,  it  may  not  be  wise 
and  prudent  to  accept  employment  subject  to  the  rule 


SECURITY    IN    LIFE    AND    LIMB         291 

of  obvious  risks."  Notwithstanding  the  theoretical 
liberty  of  every  person  to  contract  for  his  labor  or  serv- 
ices and  his  legal  right  to  abandon  his  employment  if 
the  conditions  of  service  are  not  satisfactory,  practi- 
cally, by  stress  of  circumstances,  poverty,  the  depend- 
ence of  his  family,  scarcity  of  employment,  competi- 
tion, or  other  conditions,  the  laborer  frequently  has  no 
choice  but  to  accept  employment  upon  such  terms  and 
under  such  conditions  as  are  offered.  Under  such 
circumstances,  experience  had  shown,  before  the  pas- 
sage of  the  statute,  that  many  employers  would  not 
exercise  a  proper  degree  of  care  for  the  safety  of  their 
workmen.  The  servant  had  to  assume  the  risk  of  in- 
jury, and  the  master  took  the  chance  of  a  suit  for 
damages.  It  was  to  meet  this  precise  situation  and 
protect  employees  in  such  situation  that  this  legisla- 
tion was  adopted.  It  imposes  upon  the  master  an  abso- 
lute, specific  duty  —  one  which  he  cannot  delegate  and 
against  his  neglect  of  which  he  ought  not  to  be  allowed 
to  contract.  If  the  employee  must  assume  the  risk  of 
the  employer's  violation  of  the  statute,  the  act  is  a 
delusion  so  far  as  the  protection  of  the  former  is  con- 
cerned. He  is  in  the  same  condition  as  before  it  was 
passed.  He  is  compelled  to  accept  the  employment; 
he  must  assume  the  risk;  when  he  is  killed  or  crippled, 
he  and  those  dependent  on  him  have  no  remedy,  and 
the  law  is  satisfied  by  the  payment  of  a  fine.  The  more 
completely  the  master  has  neglected  the  duty  imposed 
upon  him  by  statute  for  the  servant's  protection,  the 
more  complete  is  his  defense  for  the  injury  caused  by 


292  THE    PUBLIC    CONSCIENCE 

that  neglect.  Justice  requires  that  the  master,  and  not 
the  servant,  should  assume  the  risk  of  the  master's 
violation  of  the  law  enacted  for  the  servant's  protec- 
tion, and  in  our  opinion  this  view  is  in  accordance  with 
sound  principles  of  law." 

Streeter  had  sued  the  Scraper  Company  for  an  injury- 
received  while  in  its  employment  resulting  from  the 
slipping  of  his  hand  so  that  it  struck  a  rapidly  revolv- 
ing wood  jointer,  which  was  unguarded,  resulting  in 
the  loss  of  three  fingers.  This  was  actionable  under 
an  Illinois  statute  requiring  dangerous  machinery  to 
be  fenced  in. 

Judgment  in  the  Trial  Court  and  in  the  Appellate 
Court  had  been  for  the  company;  but  the  Supreme 
Court  reversed  this  decision  and  ordered  a  new  trial. 

Comment.  This  case  marks  a  complete  change  in  social 
philosophy  and,  one  might  say,  if  the  new  principle  had 
not  aheady  been  found  in  other  contexts,  a  totally  new 
legal  principle.  The  entire  case  deserves  close  study, 
but  we  may  note  especially  the  old  doctrine  of  risk  as 
part  of  the  law  of  master  and  servant  to  be  based  upon 
two  things,  viz.:  (1)  freedom  of  contract,  a  protection 
of  the  individual  as  an  all  important  part  of  society  and 
(2)  volenti  non  fit  injuria,'^  a  highly  abstract  conception 
of  individuals  as  ideally  complete  independent  sovereign- 
ties, with  which  it  was  not  the  law's  business  to  interfere. 
The  new  type  of  law,  Employer's  Liability,  is  not  op- 
posed to  the  essential  meaning  of  freedom  of  contract; 
but  the  reasoning  of  Judge  Dunn  here  indicates  that, 
under  modern  social  conditions  there  is  no  real  freedom 

^  Harm  cannot  be  done  to  a  man  who  willingly  suffers  it. 


SECURITY    IN    LIFE    AND    LIMB         293 

of  the  kind.  While  he  does  not  specifically  take  up  the 
question  of  police  power,  the  cases  presented  under  that 
title  in  the  classification  following  the  present  one/  show 
us  plainly  that  the  paramount  law  today  recognizes  the 
necessity  of  protecting  all  individuals  so  far  as  possible 
and  that  the  principle  of  laissez-faire  is  very  much  in 
disrepute.  The  modern  doctrine  of  the  police  power  of  the 
state  seems  somewhat  vague.  In  Mitchell  v.  Reynolds 
there  is  a  more  satisfactory  particularizing  of  the  person. 


Food  Adulteration 

PLUMLEY  V.  MASSACHUSETTS 

155  U.  S.,  461 

A  statute  of  Massachusetts  provides  as  follows: 
"  No  person  by  himself  or  his  agents  or  servants, 
shall  render  or  manufacture,  sell,  offer  for  sale,  expose 
for  sale  or  have  in  his  possession  with  intent  to  sell, 
any  article,  product  or  compound  made  wholly  or 
partly  out  of  any  fat,  oil  or  oleaginous  substance  or 
compound  thereof,  not  produced  from  unadulterated 
milk  or  cream  from  the  same,  which  shall  be  in  imita- 
tion of  yellow  butter  produced  from  pure  unadulterated 
milk  or  cream  of  the  same;  provided:  That  nothing 
in  this  act  shall  be  construed  to  prohibit  the  manufac- 
ture or  sale  of  oleomargarine  in  a  separate  and  distinct 
form,  and  in  such  manner  as  will  advise  the  customer 
of  its  real  character,  free  from  coloration  or  ingredient 
that  causes  it  to  look  like  butter." 

1  Cf.  especially  Munn  v.  Illinois  and  State  v.  J.  J.  Newman 
Lumber  Co. 


294  THE    PUBLIC    CONSCIENCE 

Proper  penalties,  etc.,  were  provided  and  Plumley 
was  convicted  in  the  Municipal  Court  of  Boston  on  the 
charge  of  having  violated  this  statute  on  October  6th, 
1891.  He  appealed  on  the  ground,  among  other 
grounds,  that  the  law  was  unconstitutional.  Congress 
alone  has  the  power  to  regulate  commerce  between 
states ;  and  the  article  which  he  sold  was  a  package  of 
oleomargarine  manufactured  in  Illinois  by  a  firm  of 
which  he  was  the  agent  only.  He  sold  the  article  in  the 
original  package  which  was  properly  marked  in  ac- 
cordance with  the  act  of  Congress. 

The  court  held  that  the  statute  of  Massachusetts 
was  not  unconstitutional.  Massachusetts  is  not  regu- 
lating interstate  commerce  but  has  a  perfect  right  to 
say  what  shall  be  sold  within  her  own  borders.  The 
act  of  Congress  relating  to  oleomargarine  does  not 
interfere  with  the  exercise  by  the  states  of  any  author- 
ity they  possess  of  preventing  deception  or  fraud  in 
the  sales  of  property  within  their  respective  limits. 
The  Massachusetts  statute  was  aimed  at  deceit  and 
fraud. 

The  judgment  of  the  lower  court  was  affirmed  and 
Plumley  fined. 

A  strong  dissenting  opinion  on  this  case  was  given 
by  Chief  Justice  Fuller,  Justices  Field  and  Brewer  con- 
curring. This  opinion  held  that  the  possibility  that  the 
appearance  of  certain  articles  might  deceive  those  who 
sought  to  purchase  them,  ought  not  to  bar  such  articles 
from  commerce. 


SECURITY   IN    LIFE    AND    LIMB         295 

Food  Supply 

The  New  York  Globe,  September  25,  1916. 

Arthur  Plaut,  a  director  in  the  Brooklyn  slaughter- 
ing establishment  of  Robert  Plaut  &  Son,  charged  with 
bribing  an  ofl&cial  of  the  Health  Department  to  pass 
the  carcasses  of  tubercular  cows  for  human  consump- 
tion, was  found  guilty  by  a  jury  sitting  before  Judge 
Cropsey  in  Part  III,  Supreme  Court,  Brooklyn,  on 
Saturday,  the  23d. 

This  conviction  was  the  first  fruits  of  a  long  cam- 
paign directed  against  such  dealings,  by  Alfred  W. 
McCann  and  the  New  York  Globe.  The  law  against 
such  dealings  is  plain  —  the  more  important  part  is 
the  conviction  of  an  offender. 

New  York  Globe,  January  29,  1916. 

In  the  Supreme  Court  of  New  York  State,  a  jury 
sitting  before  Judge  Dugro  found  the  Globe  guilty  of 
libel  because  of  an  article  published  over  the  signature 
of  A.  W.  McCann. 

The  case  grew  out  of  the  prosecution  by  the  corpora- 
tion counsel  of  a  number  of  provision  dealers  for  keep- 
ing rotten  eggs.  Many  dealers  were  sent  to  the  peni- 
tentiary. Armour  &  Co.  and  Swift  &  Co.,  both  large 
dealers,  had  been  heavily  fined.  In  the  article  by 
McCann  referred  to  he  said:  "Winfield  H.  Mapes, 
wholesale  butter  and  egg  merchant,  etc.,  etc.,  was  also 
convicted  by  the  same  court  of  trafficking  in  rotten 
eggs  and  heavily  fined." 


296  THE    PUBLIC    CONSCIENCE 

The  case  for  the  prosecution  rested  upon  technical 
errors  in  the  statement  of  McCann. 

As  a  matter  of  fact  Winfield  H.  Mapes  was  not  con- 
victed nor  fined.  It  was  the  corporation  Winfield  H. 
Mapes  &  Co.,  of  which  he  was  president,  which  was 
convicted ;  and  the  charge  was  of  "  holding,  keeping 
or  offering  for  sale  spot  eggs  under  the  provision  of  the 
sanitary  code  which  provides  as  follows: 

"Any  spot  eggs  in  possession  of,  or  held,  or  kept  or 
offered  for  sale  by  a  dealer  in  food  shall  prima  facie  be 
deemed  to  be  held,  kept  and  offered  for  sale  as  human 
food." 

Abundant  proof  had  been  produced  that  such  eggs 
were  sold  in  large  quantities  to  bakers  and  were  incor- 
porated by  them  in  pound  cake. 

The  jury  was  instructed  by  Judge  Dugro  that  the 
Globe  having  admitted  its  error  in  omitting  &  Co. 
from  the  name  of  the  person  accused,  verdict  must  be 
rendered  in  favor  of  Winfield  H.  Mapes. 

The  jury  gave  him  six  cents  damages.  Counsel 
moved  to  set  the  verdict  aside  but  the  motion  was 
denied. 

Comment.  Plumleij  v.  Mass.,  and  Other  Food  Supply 
Cases.  The  Plumley  Case  is  doubly  a  security  case. 
It  comes  under  a  statute  which  provides  for  the  security 
of  the  public  in  the  matter  of  pure  food  and  the  decision 
of  the  court  confirms  the  security  of  the  state  of  Massa- 
chusetts in  looking  after  purely  domestic  affairs.  The 
dissenting  opinion  seems  to  be  based  upon  the  principle 
of  caveat  emptor. 


SECURITY    IN    LIFE    AND    LIMB         297 

The  Globe  libel  case  is  here  included  because,  while 
technically  it  secures  a  firm  against  misrepresentation 
(with  damages  assessed  at  six  cents),  in  reality  it  was  a 
defense  against  impure  food;  and  the  newspaper  account 
quoted  implies  the  statute  under  which  the  attack  was 
considered  justifiable. 


Health  —  Practicing  Medicine 

PUBLIC  HEALTH  LAW  OF  NEW  YORK  STATE 

L.  1909,  Ch.  49,  Art.  VIII 

The  practice  of  medicine  is  defined  as  follows:  A 
person  practices  medicine  within  the  meaning  of  this 
article,  except  as  hereinafter  stated,  who  holds  him- 
self out  as  being  able  to  diagnose,  treat,  operate,  or 
prescribe  for  any  human  disease,  pain,  injury,  deform- 
ity, or  physical  condition,  and  who  shall  either  offer 
or  undertake,  by  any  means  or  method,  to  diagnose, 
treat,  operate  or  prescribe  for  any  human  disease,  pain, 
injury,  deformity  or  physical  condition. 

There  is  a  section  which  deals  with  the  qualifications 
of  medical  practitioners,  making  very  strict  require- 
ments. 


298  THE    PUBLIC    CONSCIENCE 

Nuisance  —  Danger  to  Life 

ANONYMOUS 

Nisi  Prius,  1699 

(Reported  12  Modern,  342.    Beale,  99,  3d  ed.) 

One  was  indicted  for  a  nuisance  for  keeping  several 
barrels  of  gunpowder  in  a  house  in  Brentford  town, 
sometimes  two  days,  sometimes  a  week,  till  he  could 
conveniently  send  them  to  London.  Wherein  Holt, 
C.  J.,  resolved : 

First.  That  to  support  this  indictment  there  must  be 
apparent  danger;  or  mischief  already  done. 

Second.  Though  it  had  been  done  for  fifty  or  sixty 
years,  yet  if  it  be  a  nuisance,  time  will  not  make  it 
lawful. 

Third.  If  at  the  time  of  setting  up  this  house,  in 
which  the  gunpowder  is  kept,  there  had  been  no  houses 
near  enough  to  be  prejudiced  by  it,  but  some  were  built 
since,  it  would  be  at  peril  of  builder. 

Fourth.  Though  gunpowder  be  a  necessary  thing, 
and  for  defense  of  the  Kingdom,  yet  if  it  be  kept  in 
such  a  place  as  it  is  dangerous  to  the  inhabitants  or 
passengers,  it  will  be  a  nuisance. 

Comment.  The  fourth  point  made  by  Justice  Holt  con- 
tains the  kernel  of  our  nut.  It  could  be  made  only  in  a 
constitutional  realm.  Gunpowder  is  necessary  for  the 
defense  of  the  kingdom  —  but  that  is  no  reason  for  en- 
dangering the  lives  of  constituent  members  of  that  king- 


SECURITY    IN    LIFE    AND    LIMB         299 

dom.  It  is  assumed  that  it  could  be  kept  where  it  would 
not  endanger  life  —  at  least  in  time  of  peace.  In  time  of 
war,  government  needs  come  first,  whatever  the  danger 
to  individuals. 

Cf.  the  Kingsland  and  Haskell,  N.  J.,  cases  in  1916 
where  enormous  damage  to  property  was  done,  but  very 
little  loss  of  life  occurred.  The  Canadian  Car  Co.,  at  the 
former  place,  had  enjoined  the  authorities  from  inter- 
ference with  their  plant. 


Public  Safety  —  Explosives 

New  York  Times,  Summer  of  1916. 

Following  the  immensely  destructive  explosion  at 
Black  Tom  pier,  caused  by  the  storage  of  large  quan- 
tities of  munitions  ready  for  shipment  to  the  war  in 
Europe,  the  Board  of  City  Commissioners  of  Jersey 
City  passed  regulations  forbidding  the  shipment  of 
high  explosives  into  or  from  Jersey  City.  The  embargo 
which  was  passed  was  sweeping  in  character  and  was 
framed  so  as  to  end  for  all  time  the  utilization  of  the 
port  facilities  of  Jersey  City  for  the  handling  of  high 
explosives. 

On  August  10th,  Federal  Judge  Rellstab  of  Trenton 
granted  a  temporary  injunction  restraining  the  author- 
ities of  Jersey  City  from  enforcing  these  regulations. 

Judge  Rellstab  held  that  there  cannot  be  two  sources 
of  power  to  regulate  the  same  thing.  The  control  of 
interstate  commerce  is  vested  exclusively  in  the  Federal 
Government  through  its  proper  agent,  the  Interstate 
Commerce  Commission.    If  the  municipahty  of  Jersey 


300  THE    PUBLIC    CONSCIENCE 

City  has  a  grievance  the  proper  place  to  take  that 
grievance  is  to  the  commission. 

The  Deputy  Commissioner  of  Public  Safety  of  Jersey 
City  said  that  the  city  would  obey  the  injunction  and 
would  not  interfere  with  the  passage  of  explosives 
through  the  city;  but  it  would  prevent  the  storage  of 
explosives  in  the  city  and  would  see  to  it  that  any 
shipments  hauled  into  Jersey  City  were  immediately 
transferred  to  ships  in  the  harbor  or  to  points  outside 
the  city  limits.    {Times,  Aug.  11,  1916.) 

The  regulation  of  the  sale  and  storage  of  explosives 
within  the  harbor  of  New  York,  whose  limits  extend 
to  the  Jersey  shore,  was  formerly  provided  for  under 
the  State  Fire  Marshal's  law.  This  department  had 
been  recently  discontinued. 

Comment.   Various  aspects  of  security  are  here  represented: 

1.  Desire   of   authorities   of   Jersey   City   to   protect 
their  citizens. 

2.  Desire  of  representatives  of  the  Federal  power  not 
to  have  it  tampered  with. 

3.  Yielding  to  authority  on  the  part  of  municipal  offi- 
cers but  assertion  of  sovereignty  within  their  own  field. 

Carrying  Concealed  Weapons 

Section  1897  of  the  Penal  Code  of  the  State  of  New 
York: 

"A  person  who  attempts  to  use  against  another,  or 
who  carries  or  possesses,  any  instrument  or  weapon,  of 
the  kind  commonly  known  as  a  black-jack,  slungshot, 


SECURITY    IN    LIFE    AND    LIMB         301 

billy,  sand  club,  sand  bag,  metal  knuckles,  bludgeon, 
or  who,  with  intent  to  use  the  same  unlawfully  against 
another,  carries  or  possesses  a  dagger,  dirk,  dangerous 
knife,  razor,  stiletto,  or  any  other  dangerous  or  deadly 
instrument  or  weapon,  is  guilty  of  a  misdemeanor,  and 
if  he  has  been  previously  convicted  of  any  crime,  he  is 
guilty  of  a  felony. 

A  person  who  carries  or  possesses  a  bomb  or  bomb- 
shell, or,  who  with  the  intent  to  use  the  same  unlaw- 
fully against  property  or  person  of  another,  carries  or 
possesses  any  explosive  substance,  is  guilty  of  a  felony. 

Any  person  under  the  age  of  sixteen  years,  who  shall 
have,  carry,  or  have  in  his  possession,  any  of  the  arti- 
cles named  or  described  in  the  last  section,  which  it  is 
forbidden  therein  to  offer,  sell,  loan,  lease  or  give  to 
him  shall  be  guilty  of  juvenile  delinquency. 

Any  person  under  the  age  of  sixteen  years,  who  shall 
have  in  his  possession  in  any  city,  village  or  town  of 
this  state,  any  pistol,  revolver  or  other  firearm  of  a 
size  which  may  be  concealed  upon  the  person  without 
written  license  therefor,  issued  to  him  as  hereinafter 
prescribed,  shall  be  guilty  of  a  misdemeanor,  and  if  he 
has  been  previously  convicted  of  any  crime  he  shall 
be  guilty  of  a  felony." 

New  York  Evening  Post,  January  10,  (?)  1912 

Mrs.  Margaret  M.  had  been  charged  with  homicide 
by  wilful  neglect,  in  connection  with  the  death  of  her 
daughter,  Kathryn,  5  years  old,  of  diphtheria  on 
Thanksgiving  Day. 


302  THE    PUBLIC    CONSCIENCE 

The  hearing  was  before  Coroner  Shongut  and  the 
jury,  composed  largely  of  prominent  business  men, 
based  its  action  on  the  view  that  ignorance  of  the  ac- 
cused mother  did  not  constitute  "  wilful  neglect." 

The  jury  found,  nevertheless,  that  failure  to  call  a 
regular  physician  had  caused  the  child's  death,  and 
urged  the  pressing  of  the  pending  cases  against 
Christian  Science  practitioners,  and  the  strengthening 
of  the  law  in  such  matters  if  the  laws  in  force  were  not 
adequate. 

Another  daughter  had  been  attacked  by  the  same 
disease  and  quarantined.  Two  Christian  Sv^ience  prac- 
titioners attended  the  child  who  died. 

New  York  Herald,  November  12,  1914. 

Mrs.  Flower,  wife  of  Dr.  R.  C.  Flower,  an  imprisoned 
swindler,  pleaded  guilty  to  having  attempted  to 
smuggle  morphine  to  her  husband  in  the  Tombs.  She 
was  sentenced  to  sixty  days  in  the  workhouse. 

Captain  Thomas  McEnery,  of  Texas,  received  a  sus- 
pended sentence  on  the  same  charge. 


PRESERVATION    OF    PROPERTY  303 


11.    SECURITY    IN    PRESERVATION    OF 
PROPERTY 

Attacks  upon  Credit  (a)   Forgery 
REGINA  V.  GLOSS,  1857 

(Reported  Dears,  and  B.  C.  C,  460.    Beale,  837,  3d  ed.) 

The  prisoner  was  tried  for  the  forgery  of  a  copy 
of  a  painting,  on  which  he  painted  the  signature  "  John 
Linnell." 

Forgery  is  defined  to  be  the  fraudulent  making  or 
alteration  of  a  writing,  to  the  prejudice  of  another's 
rights.  In  the  case  of  a  written  instrument,  the  for- 
gery of  the  signature  is  really  the  forgery  of  the  whole 
instrument,  and  is  always  so  laid  in  the  indictment. 
Unless,  therefore,  an  indictment  would  lie  for  the  for- 
gery of  a  picture,  this  count  cannot  be  supported. 
(There  were  other  counts  in  the  indictment,  one  for 
obtaining  money  by  false  pretences,  upon  which  he  was 
acquitted,  another  for  a  cheat  at  common  law.  The 
court  held  that  the  prisoner  could  have  been  convicted 
as  a  cheat  if  the  indictment  had  been  properly  framed.) 

A  forgery  must  be  of  some  document  or  writing;  and 
this  was  merely  in  the  nature  of  a  mark  put  upon  the 
painting  with  a  view  to  identifying  it,  and  was  no  more 
than  if  the  painter  put  any  other  arbitrary  mark  as 
a  recognition  of  the  picture  being  his. 

Conviction  quashed. 


304  THE    PUBLIC    CONSCIENCE 

Comment.  This  case  is  given  as  an  indication  of  the  tech- 
nical and  meticulous  character  of  the  decisions  in  first 
cases.  It  is  exceedingly  doubtful  if  any  such  decision 
would  be  made  today. 

Counterfeiting 

By  the  ancient  common  law  (11  Cyc.  302)  making 
counterfeit  coin  of  the  realm  was  treason  and  subse- 
quently a  felony  {U.  S.  v.  Coppersmith,  4  Fed.  198); 
and  passing,  having  in  possession  with  intent  to  pass 
as  true,  and  procuring  with  such  intent,  having  in 
possession  an  instrument  for  counterfeiting  current 
coin  and  procuring  an  instrument  with  intent  to  use 
in  making  foreign  coin,  were  misdemeanors. 

In  the  United  States  the  Federal  Penal  Code  (Sees. 
147-178)  provides  that  "whoever,  with  intent  to  de- 
fraud, shall  falsely  make,  forge,  counterfeit,  or  alter 
any  obligation  or  other  security  of  the  United  States, 
shall  be  fined  not  more  than  five  thousand  dollars  and 
imprisoned  not  more  than  fifteen  years. 

Smaller  penalties,  but  still  severe  ones,  are  provided 
for  similar  offenses  against  banking  associations 
authorized  by  the  state.  Knowledge  is  a  necessary 
element  and  various  acts  have  been  passed  making  it 
clear  that  any  attempt,  no  matter  how  shrewdly 
planned,  to  evade  the  provisions  of  the  section  cited 
above  will  be  counted  to  be  counterfeiting  and  duly 
punished.  There  are  innumerable  cases  under  these 
statutes  but  no  new  principle. 


PRESERVATION    OF    PROPERTY         305 

REX  V.  SUTTON,  1736 
Hardwicke,  370 

The  defendant  had  in  his  custody  certain  iron  stamps 
each  of  which  would  make  or  impress  the  figure  of  one 
of  the  sceptres  impressed  upon  half  guineas.  He  was 
believed  to  have  intended  to  stamp  these  upon  six- 
pences, to  color  them  the  color  of  gold  and  fraudulently 
utter  them :  "  against  the  peace  of  our  Lord  the  King, 
his  crown  and  dignity."  He  further  had  in  his  pos- 
session one  such  piece. 

For  the  defendant  it  was  argued  that  the  common 
law  takes  no  notice  of  a  bare  intention,  as  a  crime, 
unless  coupled  with  some  overt  act. 

Lee,  J.,  —  "  It  is  certain  that  a  bare  intention  is  not 
punishable;  and  yet  when  joined  with  acts  whose  cir- 
cumstances may  be  tried,  it  is  so  .  .  .  In  this  case  the 
indictment  is  for  unlawfully  having  in  his  custody 
stamps  capable  of  making  impressions  of  sceptres,  with 
the  intent  to  make  such  impression;  now  the  statute 
of  8  &  9  Will.  Ill  (c.  26)  has  considered  the  having 
as  an  act,  for,  by  the  statute,  it  is  high  treason  to  have 
(knowingly)  any  instrument,  etc.,  in  his  possession. 
.  .  .  the  only  act  capable  of  trial  in  the  offense  against 
the  statute  is  the  having  in  possession.  All  that  is 
necessary  in  this  case  is  an  act  charged,  and  a  criminal 
intention  joined  to  the  act." 

The  court  gave  judgment  that  the  defendant  do 
stand  in  the  pillory  at  Charing-Cross;  and  in  con- 


306  THE    PUBLIC    CONSCIENCE 

sideration  of  his  poverty  and  long  imprisonment 
hitherto,  that  he  do  pay  a  fine  of  6s.  8d.  and  be  im- 
prisoned for  six  months. 

Comment.  This  is  extremely  important  as  showing  the 
border  line  between  an  act  and  an  intent,  just  the  place 
where  the  unpunishable  intent  passes  over  into  an  act, 
the  act  here  being  created  by  statute,  viz.:  the  having 
in  possession.  The  undoubted  intent  joined  to  this  made 
an  indictable  offense. 


False  Entry 

New  York  Times,  September  26,  1913. 

President  Wilson  pardoned  today  Charles  A.  Isaacs, 
sentenced  at  Fort  Dodge,  Iowa,  June  20  last  to  five 
years  in  the  penitentiary  for  making  false  entries  in 
the  books  of  the  Forest  City  National  Bank,  of  which 
he  was  cashier.  Strict  compliance  with  the  law  by 
Isaacs,  it  is  asserted,  would  have  wrecked  the  bank 
by  divulging  its  condition  to  the  public,  whereas  the 
false  entries,  covering  excessive  loans  to  a  stockholder 
of  the  institution  until  he  could  realize  on  farm  land 
transactions,  resulted  in  no  loss. 

It  was  represented  to  the  President  that  Isaacs  acted 
under  the  domination  of  a  superior  officer.  Sentence 
had  been  suspended,  pending  the  President's  action  on 
the  recommendation  of  the  trial  judge  and  prosecuting 
attorney  for  a  pardon. 

Comment.    This  is  an  instance  wherein  a  strict  adherence 
to  the  letter  of  the  law  would  have  worked  substantial 


PRESERVATION    OF    PROPERTY  307 

injustice.  It  is  rare  to  find  a  trial  judge,  the  prosecuting 
officer  and  the  pardoning  power  unanimous  that  it  is  so. 
And  yet  it  is  unlikely  that  the  law  will  be  changed,  for 
this  case  was  exceptional.  Ordinary  violations  of  the 
law  will  still  be  punished. 


Interference  with  Mails 

UNITED  STATES  v.  AGLER 

62  Fed.  Rep.,  824.    Circuit  Court,  D.  Indiana,  1894 

(Taken  from  the  opinion  of  District  Judge  Baker) 

Prior  to  the  2nd  day  of  July,  1890  ...  the  United 
States,  as  a  municipal  corporation,  had  no  power  .  .  . 
to  go  into  the  Courts  of  Equity  of  the  United  States, 
and  invoke  the  aid  of  those  courts,  by  their  restraining 
power,  to  prevent  interference  with  the  carriage  of  the 
mails  or  with  the  carriage  of  interstate  commerce. 
Prior  to  that  time  the  sole  remedy  was  on  the  criminal 
side  of  the  court.  The  sole  method  in  which  the 
United  States,  as  a  government,  could  prosecute  vio- 
lators of  the  law  who  interfered  with  the  carriage  of 
mails  or  interfered  with  the  instrumentalities  used  in 
the  conduct  of  interstate  commerce,  was  by  indictment 
or  information  on  the  criminal  side  of  the  court ;  but  the 
growth  of  railways  in  this  country  and  the  combina- 
tions of  laborers  employed  on  those  roads  for  the  pur- 
pose of  enforcing,  by  strikes  or  otherwise,  what  they 
conceived  to  be  their  just  rights,  had  led  to  a  condi- 


308  THE    PUBLIC    CONSCIENCE 

tion  of  things  that,  in  the  judgment  of  Congress,  made 
it  imperative  that  the  courts  of  the  United  States  —  in 
other  words,  that  the  nation  itself  —  for  the  purpose  of 
protecting  the  mails  of  the  country,  and  for  the  purpose 
of  protecting  the  passenger  and  freight  traffic  on  inter- 
state railroads,  should  have  the  right  to  invoke  not 
only  the  criminal  jurisdiction  of  the  court  by  fines,  or 
by  sending  to  the  penitentiary  those  who  were  guilty 
of  violations  of  those  laws,  but  that  the  government 
should  also  be  clothed  with  the  power  —  or  rather  that 
the  courts  of  the  United  States  should  be  clothed  with 
the  power  —  of  laying  their  strong  hands  on  these  men, 
and  not  waiting  until  the  crimes  had  been  committed, 
but  restraining,  not  for  the  purpose  of  preventing 
people  from  doing  what  is  lawful,  or  to  prevent  their 
getting  better  wages,  but  for  the  purpose  of  saying  to 
everybody  that  civil  liberty  cannot  exist  where  com- 
binations of  men  undertake  by  force  and  violence  to 
arrest  the  peaceable  and  orderly  conduct  of  business 
among  the  States." 

It  was  the  opinion  of  Judge  Baker  that  the  above 
considerations  led  to  the  passage  of  the  law  of  July  2nd, 
1890,  which  gave  to  the  courts  of  the  United  States 
enjoining  power. 

Comment.  Note  that  we  have  not  here  a  decided  case; 
but  rather  the  interpretation  by  a  United  States  Judge 
of  a  statute  which  gives  the  law  plainly,  viz. — that 
there  may  not  be  interference  with  mails  in  any  violent 
or  disorderly  fashion. 


PRESERVATION    OF    PROPERTY  309 

Congress  represents  the  nation  itself  but  through 
the  courts  and  constitutional  restrictions.  Many  acts 
of  Congress  have  been  declared  unconstitutional  and 
other  acts,  designed  to  serve  the  same  purpose  but 
more  adroitly  worded,  have  been  passed  in  their  stead 
which  have  been  called  constitutional.  Constitutional 
machinery  moves  slowly  and  is  usually  far  behind  pub- 
lic opinion,  but  it  is  the  only  sure  index  of  a  public 
opinion  which  is  more  than  ephemeral. 

Blue  Sky  Laws 

New  York  Times,  1916-17. 

The  so-called  "  blue-sky  "  laws,  which  would  provide 
for  the  licensing  of  dealers  in  stocks,  bonds  and  other 
securities  and  make  other  regulations,  have  been  en- 
acted in  twenty-seven  states.  The  legislation  has  been 
consistently  opposed  by  the  Investment  Bankers'  Asso- 
ciation and  many  of  these  laws  have  been  declared 
unconstitutional. 

On  January  23,  1917,  the  Supreme  Court  of  the 
United  States  upheld  the  "  blue  sky  "  laws  of  Ohio, 
Michigan  and  South  Dakota  regulating  the  sale  of 
securities.  Justice  McKenna  handed  down  the  opinion 
of  the  Court  to  which  Justice  McReynolds  alone  dis- 
sented. They  admit  that  such  statutes  may  curb  and 
burden  legitimate  business,  but  hold  that  the  interests 
of  legitimate  business  are  not  paramount  to  the  police 
power  of  states  to  protect  their  citizens  from  fraud. 
Federal  Court  injunctions  suspending  enforcement  of 
the  laws  are  dissolved. 


310  THE    PUBLIC    CONSCIENCE 

Model  Law  is  Upheld 

The  laws  do  not  attempt  to  prohibit  unwise  invest- 
ments, but  give  state  authorities,  through  security 
commissions  or  banking  superintendents,  authority  to 
forbid  the  sale  within  state  borders  of  securities  which 
officials  believe  would  result  in  fraud  upon  investors. 
The  Michigan  and  South  Dakota  statutes  were  pat- 
terned upon  the  "  model  "  blue  sky  bill  drafted  by  the 
National  Association  of  Attorneys  General,  which  is 
the  model  for  the  laws  of  several  other  states. 

That  securities  are  instrumentalities  of  commerce 
and,  as  such,  exempt  from  state  regulation  and  subject 
to  national  supervision,  was  the  principal  contention  of 
the  bankers,  stock  salesmen  and  corporations  attacking 
the  laws. 

States  have  Protective  Rights 

**  Prevention  of  deception  is  within  the  competency 
of  government,"  said  Justice  McKenna.  "  The  intangi- 
bility of  securities,  being  representatives  of  property  in 
distant  states,  and  the  integrity  of  them  can  only  be 
assured  by  the  probity  of  the  dealers  in  them  and  the 
information  they  are  required  to  give.  This  assurance 
the  states  deemed  necessary  for  their  welfare  to  re- 
quire, and  that  requirement  is  not  unreasonable  or  in- 
appropriate. 

"  We  cannot  stay  the  hands  of  government  upon  a 
consideration  of  the  impolicy  of  its  legislation.    Every 


PRESERVATION  OF  PROPERTY    311 

new  regulation  of  business  meets  challenge.  But  the 
policy  of  a  state  and  its  expression  in  laws  must  vary 
with  circumstances. 

"  The  statutes  burden  honest  business,  it  is  true, 
but  burden  it  only  that  under  its  forms  dishonest  busi- 
ness may  not  be  done.  Expense  may  thereby  be  caused 
and  inconvenience,  but  to  arrest  the  power  of  the 
state  by  such  considerations  would  make  it  impotent  to 
discharge  its  functions.  It  costs  something  to  be 
governed." 

Miscellaneous  —  (b)  Rebating 

This  is  forbidden  by  Sec.  8564  U.  S.  Comp.  St.  1913 
(Act  Feb.  4th,  1889)  and  by  Sec.  8597  (Act  Feb.  19th, 
1903).  Common  carriers  cannot  either  directly  or  in- 
directly "  by  any  special  rate,  rebate,  drawback  or 
other  device,  charge,  demand,  collect  or  receive  from 
any  person  or  persons  a  greater  or  less  compensation 
for  any  service  rendered,  in  the  transportation  of 
passengers  or  property  .  .  .  than  it  charges,  demands 
etc.,  from  any  other  "  for  like  services.  This  is  dis- 
crimination and  the  offender  is  liable  to  imprisonment 
in  the  penitentiary  for  a  term  not  exceeding  two  years 
and  to  a  fine  of  not  less  than  one  thousand  nor  more 
than  twenty  thousand  dollars. 


312  THE    PUBLIC    CONSCIENCE 

Conspiracy  in  Business 

DENVER  JOBBERS'  ASSOCIATION  v.  PEOPLE 

Court  of  Appeals  of  Colorado,  1912 

(122  Pacific  Reporter,  404.     112  Bui.  Lab.  St.,  123.) 

This  was  an  action  against  the  Denver  Jobbers'  Asso- 
ciation, the  Denver  Retail  Grocers'  Association,  and 
the  Retail  Merchants'  Association  of  Colorado  to  de- 
stroy a  combination  tending  to  monopoly  in  restraint 
of  trade.  These  associations  were  made  up  of  whole- 
sale and  retail  dealers  in  groceries  and  food  products, 
and  by  their  agreements  had  so  fixed  the  prices  of 
goods  and  so  controlled  the  marketing  of  them  that 
the  price  of  necessities  had  been  increased  to  all  the 
people  of  the  State  of  Colorado.  Dealers  not  in 
good  standing  were  not  allowed  to  secure  goods 
until  the  differences  had  been  adjusted,  and  boycotts 
of  recalcitrant  dealers  were  maintained,  to  the 
destruction  of  competition  and  to  the  injury  of  the 
people. 

The  principles  of  combination  and  cooperative  action 
are  involved;  and  the  decision  was  rendered  on  the 
basis  of  the  common  law.  The  defense  contended  that 
by  a  section  of  the  Revised  Statutes  of  Colorado,  the 
combination  of  workmen  for  lawful  purposes  estab- 
lished a  principle  in  favor  of  combination. 

Judge  Scott  said: 


PRESERVATION    OF    PROPERTY  313 

"  But  that  statute  expressly  limits  such  combinations 
to  lawful  purposes  and  particularly  mentions  some  of 
the  unlawful  purposes  for  which  such  combinations 
may  not  be  permitted,  among  which  are  '  financial  in- 
jury/ 'preventing  or  intimidating  any  other  person 
from  continuing  in  such  employment  as  he  may  see  fit/ 
or  '  the  boycott/  all  of  which  unlawful  acts  may  well 
be  considered  as  within  the  allegations  of  the  com- 
plaint in  the  case  at  bar." 

He  further  said  that  if  the  statute  were  construed 
as  the  defendants  contended,  it  would  be  void,  as  the 
legislature  could  not  grant  the  right  of  combination 
of  the  nature  charged  in  the  complaint  before  the  court, 
since  the  right  of  freedom  of  trade  belongs  to  every 
citizen  and  must  not  only  be  protected  by  the  courts 
but  is  beyond  the  power  of  the  legislature  to  deny. 

The  discussion  of  this  phase  of  the  question  was 
exhaustive,  and  at  its  conclusion  Judge  Scott  said: 

"  From  this  examination  and  review  of  the  author- 
ities cited  and  from  the  authorities  in  such  cases  cited 
and  relied  on,  it  would  seem  that  the  conclusion  is 
clearly  and  overwhelmingly  supported  that  at  (the 
common  law  conspiracies  and  combinations  of  the  char- 
acter of  the  case  at  bar  are  unlawful,  and  unlawful  in 
the  sense  that  they  may  be  restrained  in  a  court  of 
equity  at  the  suit  of  the  attorney  general  on  behalf 
of  the  people,  and  that  the  conspirators  are  subject  to 
criminal  indictment.  And  this  without  the  aid  of  a 
so-called  anti-trust  statute,  for  these  are  but  a  reitera- 
tion of  the  common  law  upon  that  subject." 


314.  THE    PUBLIC    CONSCIENCE 

Comment.  This  is  another  "  restraint  of  trade "  case, 
based  upon  the  kind  of  security  to  be  assured  to  the  com- 
munity and  its  constituent  members,  having  in  mind  an 
individualist  social  philosophy.  Still,  Judge  Scott  recog- 
nizes by  implication  that  there  are  combinations  which 
are  lawful.  The  doctrine  of  natural  rights  here  pro- 
pounded has  a  musty  odor.    It  needs  ventilating. 


Strikes  and  Picketing 

HARDIE-TYNES  MFG.  CO.  v.  CRUSE 

Supreme  Court  of  Alabama,  1914 

(66  Southern  Reporter,  657.     189  Bui.  Lab.  St.,  158.) 

The  company  named  brought  a  bill  to  secure  an 
injunction  against  W.  D.  Cruse  and  others.  The  bill 
of  complaint  sought  relief  against  certain  of  the  com- 
plainant's former  employees,  members  of  the  Molders' 
Union,  who  in  cooperation  with  the  union  had  engaged 
in  a  general  strike  against  their  employers,  including 
this  company.  It  charged  concerted  action  to  coerce 
the  employers  to  agree  to  their  terms,  and  to  prevent 
the  employers  from  employing  other  members  of  the 
union  in  their  places.  An  elaborate  system  of  picket- 
ing and  patrolling,  and  intimidation,  threats,  insults, 
and  in  some  cases  violence  were  charged.  Large  pecu- 
niary damages  and  a  probability  of  the  continuance  of 
the  acts  were  alleged,  and  the  bill  prayed  for  an  in- 
junction covering  all  the  practices  complained  of.    The 


PRESERVATION  OF  PROPERTY    315 

respondents  objected  to  the  bill  on  the  ground  that  it 
was  without  equity  and  was  multifarious. 

In  delivering  the  opinion  of  the  supreme  court,  which 
reversed  the  chancellor's  decree  in  favor  of  the  re- 
spondent members  of  the  union,  and  overruled  their 
objections  to  the  bill  of  complaint,  Judge  Somerville 
said  in  part: 

"  The  English  and  American  courts  have,  we  believe, 
without  exception,  held  that  the  right  to  conduct  one's 
business,  without  the  wrongful  and  injurious  interfer- 
ence of  others,  is  a  valuable  property  right  which  will 
be  protected,  if  necessary,  by  the  injunctive  processes 
of  equity. 

"  They  seem  to  be  unanimous,  also,  in  holding  that 
employees  may  rightfully  organize  themselves  into 
associations  for  mutual  protection  and  betterment; 
and  that,  having  thus  organized,  they  may  by  con- 
federated action  withdraw  from,  or  decline  to  enter, 
the  service  of  any  particular  employer.  And  it  may  be 
further  said  that  there  is  practically  no  judicial  dis- 
sent from  the  proposition  that  in  the  accomplishment 
of  their  purposes  of  self-protection  and  self-betterment 
employees  or  non-employees  have  no  right  to  use 
threats,  intimidation,  or  violence  against  or  upon  em- 
ployers, or  upon  their  employees  or  strangers,  to  in- 
duce them  to  leave  or  not  to  enter  the  service  of  the 
former. 

"  With  respect  to  the  '  peaceful  persuasion  '  of  others 
not  to  enter  an  employer's  service,  it  may,  perhaps,  be 
said  that  such  a  right  is  generally  recognized  by  the 


316  THE    PUBLIC    CONSCIENCE 

courts,  and  injunctive  relief  against  it  is  denied,  though 
it  is  to  be  noted  that  interference  with  existing  con- 
tracts of  service  by  inducing  those  so  contracting  to 
violate  their  agreements  is  such  a  wrong  as  may  be 
enjoined  in  equity. 

"  Picketing  and  peaceful  persuasion  must  not  inter- 
fere with  a  lawful  business.  Peaceful  interference  by 
persuasion  or  picketing  can  hardly  exist. 

"  It  is  suggested  by  counsel  for  respondents  that  our 
construction  of  section  6395,  as  being  an  inhibition  of 
picketing  even  where  threats  of  violence  are  not  used, 
renders  it  unconstitutional.  No  intimation  is  offered 
as  to  what  provision  of  the  constitution  is  thereby 
offended  and  we  can  think  of  none.  Certain  it  is  that 
a  right  to  actively  and  directly  interfere  with  and  pre- 
vent the  lawful  business  of  another  is  not  included 
among  the  inalienable  rights  of  '  life,  liberty  and  the 
pursuit  of  happiness!  '  The  'liberty'  guaranteed  by 
the  Constitution  (Art.  1,  Sec.  1)  is  liberty  regulated  by 
law  and  the  social  compact ;  and  in  order  that  all  men 
may  enjoy  liberty  it  is  but  the  tritest  truism  to  say 
that  every  man  must  renounce  unbridled  license.  So, 
wherever  the  natural  rights  of  citizens  would,  if  exer- 
cised without  restraint,  deprive  other  citizens  of  rights 
which  are  also  and  equally  natural,  such  assumed 
rights  must  yield  to  the  regulations  of  municipal  law. 
If  one  man  asserts  the  constitutional  right  of  prevent- 
ing another  from  the  pursuit  of  a  lawful  business,  what 
is  to  become  of  the  undoubted  constitutional  right  of 
that  other  to  pursue  his  business  unmolested?    It  is 


PRESERVATION    OF    PROPERTY         317 

clear  that  this  notion  of  liberty  utterly  ignores  *  the 
other  fellow,'  and  denies  to  him  the  very  freedom  it  is 
claiming  for  itself." 

Comment.  Judge  Somerville's  statement,  that  "  a  right  to 
actively  and  directly  interfere  with  and  prevent  the 
operation  of  the  lawful  business  of  another  is  (certainly) 
not  included  among  the  inalienable  rights  of '  life,  liberty 
and  the  pursuit  of  happiness,'  "  is  an  indication  of  the 
prevailing  character  of  judicial  decision  until  very  re- 
cent days.  The  general  subject  is  discussed  illuminat- 
ingly  in  the  Harvard  Law  Review  for  January,  1917,  by 
Dean  Pound.  The  security  sought  here  by  the  court  on 
behalf  of  the  manufacturers  is  in  no  necessary  conflict 
with  the  security  sought  by  the  strikers.  As  Dean  Pound 
has  said,  there  need  be  no  accusations  of  corruption 
against  courts  because  of  such  decisions.  Members  of 
courts,  as  well  as  the  greater  part  of  educated  men  every- 
where, are  still  under  the  dominion  of  Eighteenth  Century 
individualism  and  can  see  no  impropriety  in  such  deci- 
sions, if  indeed  there  be  any.  This  is  not  a  work  of  special 
pleading  and  I  simply  call  attention  to  the  fact  that  the 
decision,  mistaken  or  not,  was  in  the  interest  of  property 
security,  from  the  point  of  view  of  the  court.  That  alone 
is  of  interest  in  this  connection.  Justice  White,  in  the 
Standard  Oil  Case,  in  his  somewhat  lengthy  and  involved 
sentence,  has  really  stated  this,  in  effect.  Restraint  of 
competition  must  not  be  unreasonable  and  to  be  action- 
able it  must  be  intending  wrong  to  the  general  public  — 
all  of  which  is  fairly  obvious.  In  Distilling,  etc.  v. 
People  "  the  contravention  of  well  established  principles 
of  public  policy  "  is  given  as  the  ground  of  illegality. 
This  is  a  mantle  as  broad  as  charity  but  there  can  be  no 
doubt  that  the  change  in  public  policy  is  due  primarily, 
not  to  any  philanthropic  motive  nor  to  any  desire  to  curb 


318  THE    PUBLIC    CONSCIENCE 

freedom  of  action,  but  solely  to  the  exigencies  of  the 
state.  It  has  been  found  to  militate  against  public  se- 
curity to  leave  workmen  to  fight  their  battles  unaided 
against  the  negligence  or  criminality  of  employers  whose 
employment  they  must  seek  or  starve. 


Inventions,  Patents,  Etc. 

AMERICAN  STAY  CO.  v.  DELANEY 

Supreme  Judicial  Court  of  Massachusetts,  1912 

(91  Northeastern  Reporter,  911.     112  Bui.  Lab.  St.,  142.) 

The  company  named  sought  to  restrain  John  S. 
Delaney,  a  former  employee,  from  using  or  disclosing 
certain  trade  secrets  relating  to  the  conduct  of  its  busi- 
ness. The  machinery  used  by  the  company  was  for 
the  most  part  not  patented,  having  been  devised  by  the 
president  of  the  company,  and  was  used  by  it  with  se- 
cret processes  and  formulas  in  the  production  of  leather 
welting  which  had  gained  a  wide  reputation.  Delaney 
was  a  mechanic  of  unusual  ability,  and  had  assisted  in 
perfecting  his  employer's  machinery  and  had  also  de- 
vised machines  of  his  own  invention  for  the  manufac- 
ture of  a  product  similar  to  that  put  forth  by  his  em- 
ployer's establishment.  The  superior  court  of  Suffolk 
County  refused  to  restrain  Delaney  from  using  the 
machinery  of  his  own  devising,  but  found  that  he  had 
employed  a  portion  of  the  time  belonging  properly  to 
his  employer  to  further  his  own  interests,  and  allowed 
a  recovery  in  this  behalf.     The  company  thereupon 


PRESERVATION  OF  TROPERTY    319 

appealed,  seeking  to  secure  the  injunction  to  prevent 
Delaney  from  engaging  in  the  business,  but  in  this  was 
not  successful,  the  judgment  of  the  lower  court  being 
afl&rmed. 

Judge  Braley,  speaking  with  relation  to  the  use  of 
trade  secrets,  said: 

"  It  is  elementary  that  if  the  proprietor  in  connec- 
tion with  his  business  invents,  or  discovers,  and  keeps 
secret,  processes  of  manufacture,  which  enable  him  to 
produce  goods  at  a  less  cost,  or  of  more  meritorious 
quality  than  his  competitors,  his  right  to  the  invention 
or  discovery  is  not  exclusive  as  against  the  public,  or 
persons  whose  knowledge  of  it  has  been  lawfully  ob- 
tained. It  is  a  monopoly  only  while  he  retains  control, 
and  can  prevent  publication  {Chadwick  v.  Covell,  151 
Mass.  190,  191,  23  N.  E.  1068;  Gayler  v.  Wilder,  10 
How.  477,  493,  13  L.  504).  But  if  in  violation  of  his 
contract  of  employment,  where,  although  not  expressly 
stipulated,  he  impliedly  agreed  not  to  divulge  the  plain- 
tiff's art  and  unpatented  inventions,  the  defendant 
either  individually,  or  jointly  with  others  to  whom  they 
were  improperly  disclosed,  undertook  in  the  production 
of  welt  to  use  and  apply  them,  a  court  of  equity  while 
enjoining  the  continuance  of  such  interference,  and 
further  disclosure,  will  give  relief  by  the  assessment  of 
damages  for  any  injury  already  inflicted."  (Cases 
cited.) 

As  to  the  ownership  of  inventions  perfected  by  an 
employee  he  said: 

"  The  defendant  being  of  unusual  ability  developed 


320  THE    PUBLIC    CONSCIENCE 

great  mechanical  skill  while  in  the  plaintiff's  service, 
and  with  the  understanding  that  the  plaintiff  believing 
its  undisclosed  methods  to  have  been  very  successful 
desired  him  not  to  impart  any  information  of  their 
existence,  gave  valuable  aid  to  the  president  in  the 
development  of  his  inventions,  which  became  the 
property  of  the  company.  He  was  not,  however,  em- 
ployed to  originate  inventions  for  the  plaintiff's  benefit, 
and  while  he  could  not  appropriate  his  employer's  trade 
secrets  in  whatever  form  they  may  have  consisted,  no 
obligation  rested  upon  him  to  forego  the  exercise  of  his 
inventive  powers,  even  if  they  were  incited  because  of 
knowledge  necessarily  derived  from  the  performance 
of  his  contractual  duties.  It  was  legitimate  for  him 
under  these  conditions  to  invent  and  perfect  im- 
provements which  were  embodied  in  new  machines  of 
greater  capacity  and  efficiency." 

The  injunction  sought,  to  restrain  Delaney,  was  dis- 
solved; but  the  plaintiff  was  granted  $250.00  with 
interest  as  compensation  —  but  he  was  allowed  no 
costs. 

Comment.  A  double  form  of  security  is  here  established. 
—  Right  of  an  inventor  to  the  product  of  his  own  skill 
and  right  of  an  employer  to  the  full  services  of  an 
employee. 

Personal  —  (c)  Adultery 

Among  the  Greeks  and  in  the  earlier  period  of  Roman 
Law,  it  was  not  adultery  unless  a  married  woman  was 


PRESERVATION  OF  PROPERTY    321 

the  offender.  The  foundation  of  the  later  Roman  law 
with  regard  to  adultery  was  the  lex  Julia  de  adulteriis 
coercendis.  In  Great  Britain  it  was  reckoned  a  spir- 
itual offense,  that  is,  cognizable  by  the  spiritual  courts 
only.  The  common  law  took  no  further  notice  of  it 
than  to  allow  the  party  aggrieved  an  action  for 
damages.  In  England,  however,  the  action  for  "  crimi- 
nal conversation,"  as  it  was  called,  was  nominally 
abolished  by  the  Matrimonial  Causes  Act,  1857;  but 
by  the  33d  section  of  the  same  act,  the  husband  may 
claim  damages  from  one  who  has  committed  adultery 
with  his  wife  in  a  petition  for  dissolution  of  the 
marriage  or  for  judicial  separation. 

The  husband's  adultery  must  be  either  incestuous 
or  bigamous  to  be  ground  for  divorce. 

In  some  of  the  United  States  of  America  adultery  is 
a  criminal  offense  with  imprisonment  in  the  peni- 
tentiary as  punishment.  (Encyc.  Brit.  Art.  Adultery.) 

Divorce  —  Encyc.  Brit.  Art.  —  Divorce. 

"  The  ground  pleaded  for  a  divorce  is  seldom  an  index 
to  the  motives  which  caused  the  suit  to  be  brought. 
This  is  determined  by  the  character  of  the  law  rather 
than  by  the  state  of  mind  of  the  parties;  and  so  far 
as  the  individuals  are  concerned,  the  ground  alleged  is 
thus  a  cloak  rather  than  a  clue  or  revelation.  Still 
those  causes  which  have  been  enacted  into  law  by  the 
various  state  legislatures  do  indicate  the  pleas  which 
have  been  endorsed  by  the  social  judgment  of  the 
respective  communities."  W.  W.  Willcox. 


322  THE    PUBLIC    CONSCIENCE 

Seduction 
HAMILTON  V.  LOMAX 

Supreme  Court,  New  York,  1858 

(26  Barbour,  615.    Ames,  94.) 

The  courts  have  been  careful  to  keep  seduction  and 
breach  of  promise  of  marriage  separate.  In  a  case 
for  seduction  it  was  held  to  be  erroneous  to  admit 
evidence  of  a  promise  of  marriage,  in  attempting  to 
prove  the  seduction.  No  person  seduced  can  maintain 
an  action  for  such  seduction  because  the  person  seduced 
assents  thereto.  The  only  mode  in  which  the  action 
has  ever  been  maintained  has  been  by  bringing  such 
action  in  the  name  of  some  person  having  a  right  to 
the  services  of  the  person  seduced,  and  allowing 
damages  to  be  recovered,  not  only  for  actual  loss  of 
service,,  but  for  a  sum  sufficient  also  to  punish  the 
seducer;  but  such  action  can  never  be  maintained  in 
the  name  of  the  party  seduced. 

Comment.  This  is  another  case  of  the  persistence  of  the 
opinion  that  individuals  in  any  society  occupy  the  posi- 
tion toward  one  another  of  independent  sovereigns  whose 
dealings  with  one  another's  wills  cannot  be  interfered 
with  in  any  way  whatsoever.  But  interference  with  a 
man's  property  right  in  a  woman  is  another  story.  The 
seduction  is  her  own  affair;  her  reduction  in  value  to  an 
"  owner  "  is  the  state's  affair. 


PRESERVATION    OF    PROPERTY  323 

Reputation  —  (d)  Libel 
REX  V.  TIBBITS 

Court  for  Crown  Cases  Reserved,  1901 

(Reported,  1902,  1  K.  B.,  77.     Beale,  56,  3d  ed.) 

There  were  two  defendants  in  this  case,  Tibbits  and 
Windust.  The  charges  contained  in  the  indictment 
related  to  the  publication  of  certain  matters  in  a  news- 
paper called  the  Weekly  Dispatch,  particularly  in  cer- 
tain issues  of  it  which  were  named.  Prior  to  the  pub- 
lication of  the  first  article  two  persons  named  Allport 
and  Chappell  had  been  charged  with  cruelty  to  chil- 
dren and  attempted  murder.  These  were  found  guilty 
and  sentenced  to  penal  servitude,  the  first  for  fifteen 
years  and  the  second  for  five  years;  but  during  the 
course  of  the  trial,  "  the  publication  went  far  beyond 
any  fair  and  bona  fide  report  of  the  proceedings  before 
the  magistrate.  They  (the  articles)  contained,  couched 
in  a  florid  and  sensational  form,  a  number  of  state- 
ments highly  detrimental  to  Allport  and  Chappell." 

"  It  was  not  attempted  to  be  argued  by  Mr.  Foote, 
who  appeared  as  counsel  for  both  defendants,  that  the 
publication  of  such  articles  was  lawful,  and  that  the 
persons  publishing  such  articles  could  not  be  punished. 
On  the  contrary,  he  contended  that  the  publication  of 
such  articles  was  a  contempt  of  court,  and  could  only 
properly  be  punished  as  such  either  by  summary  pro- 


324  THE    PUBLIC    CONSCIENCE 

ceedings  or  indictment  for  contempt.  He  further  urged 
that  there  was  no  evidence  of  any  intention  on  the  part 
of  either  of  the  defendants  to  pervert  or  interfere  with 
the  course  of  justice,  and  that  any  inference  which 
might  otherwise  be  drawn  from  the  contents  of  the 
articles,  that  they  were  calculated  to  pervert  or  inter- 
fere with  the  course  of  justice,  was  negatived  by  the 
fact  that  the  defendants  Allport  and  Chappell  had  been 
subsequently  convicted." 

Lord  Alverston,  C.  J.,  held  that  there  was  no  doubt 
that  the  publication  of  such  articles  constituted  a  con- 
tempt of  court  and  could  be  punished  as  such,  but  he 
said :  "  We  think  that  the  facts,  which  bring  the  in- 
criminated articles  within  the  category  of  misdemeanor, 
abundantly  appear  .  .  .  and  that  it  is  perfectly  im- 
material whether  the  articles  be  described  and  charged 
as  libels  or  contempts  or  not.  With  reference  to  the 
argument  that  there  was  no  evidence  of  any  intention 
to  pervert  the  course  of  justice,  we  are  clearly  of  opin- 
ion for  reason  given  (Many  authorities  had  been 
cited.  G.c.c),  that  this  is  one  of  the  cases  in  which 
the  intent  may  properly  be  inferred  from  the  articles 
themselves  and  the  circumstances  under  which  they 
were  published.  .  .  .  The  essence  of  the  offense  is  con- 
duct calculated  to  produce  an  atmosphere  of  prejudice 
in  the  midst  of  which  the  proceedings  must  go  on. 
Publications  of  that  character  have  been  punished  over 
and  over  again  as  contempts  of  court,  where  the  legal 
proceedings  pending  did  not  involve  trial  by  jury,  and 
where  no  one  would  imagine  that  the  mind  of  the 


PRESERVATION    OF    PROPERTY  325 

magistrates  or  judges  charged  with  the  case  would  or 
could  be  induced  thereby  to  swerve  from  the  straight 
course.  The  offense  is  much  worse  where  trial  by  jury 
is  about  to  take  place.  .  .  ."  "  If  the  articles  are,  in 
the  opinion  of  the  jury,  calculated  to  interfere  with  the 
course  of  justice  or  pervert  the  minds  of  the  magistrate 
or  of  the  jurors,  the  persons  publishing  are  criminally 
responsible."    (Conviction  affirmed.) 

Comment.  Intention  to  damage  reputation  was  proven  and 
there  was  direct  interference  with  the  function  of  the 
court,  in  the  opinion  of  the  court.  We  cannot  review 
the  facts  and  usurp  the  function  of  the  Chief  Justice,  but 
it  is  to  be  noted  that  "  the  pubHcation  of  proceedings 
publicly  held  in  a  court  of  justice,  if  fair  and  accurate, 
has  now  the  protection  of  law."  This  case  is  equally 
significant  for  the  security  of  courts. 


Libel 

THORLEY  V.  LORD  KERRY 

In  the  Exchequer  Chamber,  May  9,  1812 

(Reported  in  4  Taunton,  355.    Beale,  3d  ed.,  p.  403.) 

There  was  an  "  action  for  libel  contained  in  a  letter 
addressed  to  Lord  Kerry,  and  sent  open  by  one  of  his 
servants,  who  became  acquainted  with  its  contents. 
The  libel  charged  his  Lordship  v/ith  being  a  hypocrite, 
and  using  the  cloak  of  religion  for  unworthy  purposes." 
The  defendant  was  found  guilty  and  the  plaintiff  was 
given  £20  damages. 


326  THE    PUBLIC    CONSCIENCE 

By  a  writ  of  error  the  case  was  brought  to  the  Ex- 
chequer Chamber  and  Mansfield,  C.  J.,  dehvered  the 
opinion  of  the  court.  Referring  to  the  letter,  he  said, 
"  There  is  no  doubt  that  this  was  a  libel,  for  which  the 
plaintiff  in  error  (defendant  in  the  original  suit)  might 
have  been  indicted  and  punished ;  because,  although  the 
words  impute  no  punishable  crimes,  they  contain  that 
sort  of  imputation  which  is  calculated  to  vilify  a  man, 
and  bring  him,  as  the  books  say,  into  hatred,  contempt 
and  ridicule." 


Libel  —  or  Near  Libel 

New  York  Evening  Post,  January  (8?),  1912. 

A  jury  in  the  Supreme  Court  awarded  a  verdict  of 
$10,000,  the  full  amount  asked,  to  Mrs.  Florence 
Crews  Jones,  after  trial  of  her  suit  against  James  L. 
Perkins,  a  pubhsher.  Mrs.  Jones,  who  is  a  translator, 
contended  that  the  publisher  had  used  her  name,  un- 
authorized by  her,  in  a  book  of  short  stories  by  Guy 
de  Maupassant.  Eight  improper  stories  were  inserted 
against  her  knowledge  and  consent,  she  said. 

Basing  her  complaint  on  the  "personal  privilege 
law,"  which  was  passed  to  protect  an  individual  against 
the  use  of  his  or  her  name  for  profit  by  another  with- 
out the  owner's  consent,  Mrs.  Jones  testified  that  she 
was  "  horrified  "  when  she  opened  one  of  the  books 
and  saw  eight  grossly  improper,  poorly  translated 
stories,  with  which  she  had  had  nothing  to  do,  pub- 
lished under  her  name  as  translator.    Thereafter  she 


PUBLIC    ORDER    (DECENCY)  327 

was  deluged  with  letters  and  telephone  messages  from 
friends,  expressing  their  surprise  that  she  should 
translate  such  stories.  She  said  she  demanded  of  the 
defendant  that  he  alter  the  book  at  once,  but  he  told 
her  that  she  would,  have  to  wait  until  the  second 
edition  came  out.  The  second  edition  was  identical 
with  the  first. 


III.    PUBLIC    ORDER    (DECENCY) 

Decency  in  Respect  for  Religion 

TAYLOR'S  CASE 

King's  Bench,  1676 

(Beale,  51,  3d  ed.) 

The  defendant  had  uttered  "  divers  blasphemous  ex- 
pressions horrible  to  hear."  He  had  abused  the  charac- 
ter of  Jesus  Christ,  had  said  that  religion  was  a  cheat 
and  that  he  feared  neither  God,  devil  nor  man. 

Several  witnesses  testified  to  the  utterance  of  these 
words.  Hale  said:  "  That  such  kind  of  wicked  blas- 
phemous words  were  not  only  an  offense  to  God  and 
religion,  but  a  crime  against  the  laws,  state  and  gov- 
ernment, and  therefore  punishable  in  this  court  (for 
to  say  religion  is  a  cheat,  is  to  dissolve  all  those  obli- 
gations whereby  the  civil  societies  are  preferred) ;  and 
that  Christianity  is  parcel  of  the  laws  of  England,  and 


328  THE    PUBLIC    CONSCIENCE 

therefore   to  reproach   the  Christian  Religion  is  to 
speak  in  subversion  of  the  law." 

Judgment  was  given  that  he  should  stand  in  the  pil- 
lory in  three  several  places,  pay  one  thousand  marks 
fine  and  find  sureties  for  good  behavior  during  his  life- 
time.   (Cf.  State  v.  Williams,  4  Ire.  (N.  C.)  400.) 


PEOPLE  V.  RUGGLES 

Supreme  Court  of  New  York,  1811 

(Reported  8  Johns,  290.    Beale,  85,  3d  ed.) 

"  Indictment  for  blasphemy.*^  After  conviction  the 
record  was  removed  to  the  Supreme  Court.  Wendell, 
for  the  prisoner,  now  contended  that  the  offense 
charged  in  the  indictment  was  not  punishable  by  the 
law  of  this  state,  though,  he  admitted,  it  was  punish- 
able by  the  common  law  of  England,  where  Christian- 
ity makes  part  of  the  law  of  the  land  on  account  of  its 
connection  with  the  established  church. 

Kent,  C.  J.:  And  why  should  not  the  language  con- 
tained in  the  indictment  be  still  an  offense  with  us? 
There  is  nothing  in  our  manners  or  institutions  which 
has  prevented  the  application  or  the  necessity  of  this 
part  of  the  common  law.  .  .  .  The  people  of  this  state, 
in  common  with  the  people  of  this  country,  profess 
the  general  doctrines  of  Christianity,  as  the  rule  of 

1  The  facts  in  this  case  are  not  given  in  the  report  but  they 
may  be  inferred  from  the  judgment.    Author. 


PUBLIC    ORDER    (DECENCY)  329 

their  faith  and  practice.  .  .  .  Nothing  could  be  more 
offensive  to  the  virtuous  part  of  the  community,  or 
more  injurious  to  the  tender  morals  of  the  young,  than 
to  declare  such  profanity  lawful.  .  .  .  Things  which 
corrupt  moral  sentiment,  as  obscene  actions,  prints  and 
writings  and  even  gross  instances  of  seduction,  have, 
upon  the  same  principle,  been  held  indictable.  ...  No 
government  of  antiquity,  and  none  of  the  governments 
of  modern  Europe  (a  single  and  monitory  case  ex- 
cepted ^)  ever  hazarded  such  a  bold  experiment  upon 
the  solidity  of  the  public  morals,  as  to  permit  with 
impunity,  and  under  the  sanction  of  their  tribunals, 
the  general  religion  of  the  community  to  be  openly 
insulted  and  defamed.  The  very  idea  of  jurisprudence 
with  the  ancient  law-givers  and  philosophers  embraced 
the  religion  of  the  country. 

The  free,  equal,  and  undisturbed  enjoyment  of  re- 
ligious opinion,  whatever  it  may  be,  and  free  and  de- 
cent discussions  on  any  religious  subject,  is  granted  and 
secured ;  but  to  revile,  with  malicious  and  blasphemous 
contempt,  the  religion  professed  by  almost  the  whole 
community,  is  an  abuse  of  that  right." 

Chancellor  Kent  further  shows  that  there  is  no  such 
obligation  to  defend  Mahomet  or  the  Grand  Lama  from 
similar  attacks,  since  their  religion  is  not  that  of  this 
country.  He  somewhat  naively  assumes  them  to  be 
superstitious  as  well ! 

1  Query.    Did  Chancellor  Kent  perhaps  refer  to  the  then  re- 
cent   repudiation    of    religion    during    the    French    Revolution? 

Author. 


330  THE    PUBLIC    CONSCIENCE 

Comment.  The  broad  ground  taken  here  is  that  the  gen- 
eral sense  of  decency  of  any  community  may  not  be  out- 
raged with  impunity  on  the  principles  of  the  Common 
Law.  Taylor's  Case  (1676)  is  probably  one  of  the 
authorities  upon  which  Chancellor  Kent  relied.  Justice 
Hale  there  had  an  evident  bulwark  in  the  fact  that 
Christianity  was  "  parcel  of  the  laws  of  England ;  "  but 
his  other  reason,  viz.:  *'  for  to  say  religion  is  a  cheat  is 
to  dissolve  all  those  obligations  whereby  the  civil  soci- 
eties are  preferred  "  is  less  grounded  both  in  law  and  in 
philosophy.  Laws  against  blasphemy  are  on  many  stat- 
ute books  but  their  aid  is  seldom  invoked  against  blas- 
phemies and  still  more  rarely  enforced  today.  Christian- 
ity is  not  a  part  of  the  law  of  the  United  States;  nor  is 
any  religion.  Doubtless  blasphemy  would  be  punished 
today  if  committed  in  certain  places  —  such  as  assemblies 
of  Christians  —  but  the  charge  would  almost  certainly  be 
that  of  a  breach  of  the  peace.  The  utterance  of  remarks 
which  would  be  considered  as  blasphemous  by  the  greater 
part  of  our  population,  would  nevertheless  be  permitted 
in  many  places,  even  public  places.  Compare  the  progress 
of  freedom  of  speech  and  of  the  press.  The  public  order 
is  now  little  connected  with  any  theological  belief  what- 
ever. 


STATE  V.  LINKHAW 
Supreme  Court  of  North  Carolina,  1873 

(Reported  69  N.  C,  214.    Beale,  87,  3d  cd.) 

"  Settle,  J.  The  defendant  is  indicted  for  disturbing 
a  congregation  while  engaged  in  divine  worship,  and 
the  disturbance  is  alleged  to  consist  in  his  singing, 


PUBLIC    ORDER    (DECENCY)  331 

which  is  described  to  be  so  peculiar  as  to  excite  mirth 
in  one  portion  of  the  congregation  and  indignation  in 
the  other. 

From  the  evidence  reported  by  his  honor  who  pre- 
sided at  the  trial,  it  appears  that  at  the  end  of  each 
verse  his  voice  is  heard  after  all  the  other  singers  have 
ceased,  and  that  the  disturbance  is  decided  and  serious ; 
that  the  church  members  and  authorities  expostulated 
with  the  defendant  about  his  singing  and  the  disturb- 
ance growing  out  of  it;  to  all  of  which  he  replied  '  that 
he  would  worship  his  God  and  that  as  a  part  of  his 
worship  it  was  his  duty  to  sing.'  It  was  further  in  evi- 
dence that  the  defendant  is  a  strict  member  of  the 
church,  and  a  man  of  most  exemplary  deportment. 

" '  It  was  not  contended  by  the  state  upon  the  evi- 
dence that  he  had  any  intention  or  purpose  to  disturb 
the  congregation,  but  on  the  contrary,  it  was  admitted 
that  he  was  conscientiously  taking  part  in  the  religious 
services.' 

"This  admission  by  the  State  puts  an  end  to  the 
prosecution.  It  is  true,  as  said  by  his  honor,  that  a 
man  is  generally  presumed  to  intend  consequences  of 
his  acts,  but  here  the  presumption  is  rebutted  by  a 
fact  admitted  by  the  State. 

"  It  would  seem  that  the  defendant  is  a  proper  sub- 
ject for  the  discipline  of  his  church,  but  not  for  the 
discipline  of  the  courts." 

Comment.  The  defendant  was  acquitted  because,  however 
unseemly  his  conduct,  it  was  in  good  faith  and  without 
any  desire  to  disturb  either  public  order  or  private 
worship. 


332  THE    PUBLIC    CONSCIENCE 

Decency 
STATE  V.  BALDWIN 

North  Carolina,  1835 

(Beale,  27,  3d  ed.) 

The  defendants  had  "  assembled  at  a  public  place 
and  profanely  and  with  a  loud  voice,  cursed,  swore  and 
quarreled,  in  the  hearing  of  divers  persons,  and  it  is 
alleged,  that  by  means  thereof  a  certain  singing  school 
then  and  there  kept  and  held  was  broken  up  and  dis- 
turbed." The  trial  court  acquitted  the  defendants, 
the  state  appealed  and  Gastoii,  J.,  in  the  Supreme 
Court  refused  to  disturb  the  verdict.  His  grounds  for 
decision  were  that  this  was  a  single  act,  not  habitual, 
—  "  it  is  possible  that  a  frequent  and  habitual  repeti- 
tion of  acts  which  singly  are  but  private  annoyances 
may  constitute  a  public  nuisance  "...  and  that  while 
the  persons  in  the  singing  school  may  have  been  dis- 
turbed, "  the  loss  of  instruction,  etc.  —  does  not  very 
gravely  influence  the  good  order  or  enjoyment  or  con- 
venience of  the  citizens  in  general,  so  as  to  call  for  re- 
dress on  the  complaint  of  the  state." 


PUBLIC    ORDER    (DECENCY)  333 

Inciting  to  Murder  and  Rebellion 

PEOPLE  V.  JOHN  MOST 

New  York  71  App.  Div.,  160 

The  defendant  had  published  in  New  York  City,  in 
a  paper  called  The  Freiheit,  which  had  a  circulation  of 
about  3000  extending  into  foreign  countries,  an  article 
first  published  by  another  person  over  fifty  years  before, 
which  characterized  government  as  "  nothing  less  than 
murder  dominion  "  and  called  upon  the  adherents  of 
anarchy  "  to  execute  judgment "  by  killing  "  through 
blood  and  iron,  poison  and  dynamite  "  the  heads  of 
nations.  After  characterizing  the  rulers  of  countries 
as  despots,  it  proceeded  to  characterize  them  as  fol- 
lows :  "  They  are  in  human  society  what  the  tiger  is 
among  animals;  to  spare  them  is  a  crime;  as  despots 
permit  themselves  everything,  .  .  .  betrayal,  poison, 
murder,  etc.,  in  the  same  way  all  this  is  to  be  employed 
against  them.  Yes,  crime  directed  against  them  is  not 
only  right,  but  it  is  the  duty  of  every  one  who  has  an 
opportunity  to  commit  it,  and  it  would  be  a  glory  to 
him  if  it  was  successful." 

McLaughlin,  J.,  in  his  opinion  declared  that  the 
promulgation  of  such  unnatural  and  outrageous  doc- 
trines in  this  state  of  civilization  "  seriously  endangers  " 
the  pubUc  peace.  .  .  .  Every  civilized  nation  hereto- 
fore has  existed,  and  hereafter  must  exist,  if  at  all,  by 
the  enforcement  of  law.    Its  recognition  and  enforce- 


334  THE    PUBLIC    CONSCIENCE 

ments  are  the  safeguards  of  the  state.  .  .  .  Without  it, 
chaos  reigns  and  brute  force  becomes  substituted  for 
right. 

Whoever  openly  or  secretly  advocates  the  resort  to 
force  for  the  accomplishing  of  any  purpose,  or  the  right- 
ing of  any  wrong,  either  real  or  imaginary,  seriously 
endangers  the  public  peace,  etc.  (This  opinion  is 
greatly  condensed  but  given  in  the  words  of  the  Jus- 
tice.) Most  was  found  guilty  of  a  misdemeanor,  under 
section  675  of  the  Penal  Code,  of  that  date,  and  sen- 
tenced to  be  imprisoned  in  the  penitentiary  for  one 
year. 

Comment.  The  judge's  opinion  is  sufficient  comment  on 
this  case  inasmuch  as  it  states  very  clearly  the  grounds 
upon  which  anarchists  who  take  any  action  will  be  pun- 
ished. Such  action  is  treason,  though  not  formally  de- 
clared to  be  such.  This  case  is  applicable  to  the  Liberty 
classification  of  Free  Speech  also. 

Decency 

REX  V,  LYNN 

King's  Bench,  1789 

(Beale,  88,  3d  ed.) 

This  was  a  case  of  body  snatching.  The  defendant's 
counsel  contended  that  the  case  should  be  taken  to  the 
ecclesiastical  courts.'  —  but  the  court  held  that  the 
offense  was  contrary  to  good  morals  and  highly  in- 
decent; the  circumstance  that  the  body  was  to  be 


PUBLIC    ORDER    (DECENCY)  335 

used  for  purposes  of  dissection  does  not  make  it  the 
less  an  indictable  offense. 

The  defendant  was  fined  but  five  marks,  it  being 
thought  probable  that  he  had  acted  in  ignorance. 


COMMONWEALTH  v.  SHARPLESS 
Supreme  Court  of  Pennsylvania,  1815 

(Reported  2  Sergeant  &  Rawle,  91.     Beale,  90,  3d  ed.) 

This  was  an  indictment  against  Sharpless  and  others 
for  exhibiting  an  indecent  picture. 

It  was  denied  that  even  a  public  exhibition  of  an 
indecent  picture  was  an  indictable  offense.  The  facts 
were  granted  and  judgment  was  given  against  the  de- 
fendants but  they  made  this  objection.  In  the  opinion 
given  by  Tilghman,  C.  J.,  it  was  said,  "  In  England 
there  are  some  acts  of  immorality,  such  as  adultery, 
of  which  the  ecclesiastical  courts  have  taken  cognizance 
from  the  very  ancient  times,  and  in  such  cases,  al- 
though they  tended  to  the  corruption  of  public  morals, 
the  temporal  courts  have  not  assumed  jurisdiction. 
This  occasioned  some  uncertainty  in  the  law;  some 
difficulty  in  discriminating  between  the  offenses  pun- 
ishable in  the  temporal  and  ecclesiastical  courts.  Al- 
though there  was  no  ground  for  this  distinction  in  a 
country  like  ours,  where  there  was  no  ecclesiastical 
jurisdiction,  yet  the  common  law  principle  was  sup- 
posed to  be  in  force,  and  to  get  rid  of  it  punishments 


336  THE    PUBLIC    CONSCIENCE 

were  inflicted  by  act  of  assembly.  There  is  no  act 
punishing  the  offense  charged  against  the  defend- 
ants, and  therefore  the  case  must  be  decided  upon  the 
principles  of  the  common  law.  That  actions  of  public 
indecency  were  always  indictable,  as  tending  to  corrupt 
the  public  morals,  I  can  have  no  doubt ;  because,  even 
in  the  profligate  reign  of  Charles  II,  Sir  Charles  Sedley 
was  punished  by  imprisonment  and  a  heavy  fine  for 
standing  naked  in  a  balcony  in  a  public  part  of  the 
City  of  London.  It  is  true  that,  besides  this  shameful 
exhibition,  it  is  mentioned  in  some  of  the  reports  that 
he  threw  down  bottles  containing  offensive  liquor 
among  the  people;  but  we  have  the  highest  authority 
for  saying  that  the  most  criminal  part  of  his  conduct, 
and  that  which  principally  drew  down  upon  him  the 
vengeance  of  the  law,  was  the  exposure  of  his  person. 
Neither  is  there  any  doubt  that  the  publication  of  an 
indecent  book  is  indictable.  .  .  .  What  tended  to  cor- 
rupt society  was  held  to  be  a  breach  of  the  peace  and 
punishable  by  indictment.  The  courts  are  guardians 
of  the  public  morals,  and  therefore  have  jurisdiction  in 
such  cases.  Hence  it  follows  that  an  offense  may  be 
punishable  if  in  its  nature  and  by  its  example  it  tends 
to  the  corruption  of  morals  although  it  be  not  com- 
mitted in  public.  (Italics  mine,  g.c.c.)  .  .  .  The  de- 
fendants are  charged  with  exhibiting  and  showing  to 
sundry  persons,  for  money,  a  lewd,  scandalous  and  ob- 
scene painting.  A  picture  tends  to  excite  lust  just  as 
strongly  as  a  writing;  and  the  showing  of  a  picture  is 
as  much  a  publication  as  the  selling  of  a  book." 


PUBLIC    ORDER    (DECENCY)  337 

Privacy  is  no  excuse.  "  The  law  is  not  to  be  evaded 
by  an  artifice  of  that  kind.  If  the  privacy  of  the  room 
was  a  protection,  all  the  youth  of  the  city  might  be 
corrupted  by  taking  them  one  by  one  into  a  chamber, 
and  there  inflaming  their  passions  by  the  exhibition  of 
lascivious  pictures.  In  the  eye  of  the  law  this  would 
be  a  publication  and  a  most  pernicious  one.  (Defend- 
ants condemned.) 

Comment.  Notice  the  date.  There  are  numerous  statutes 
today  which  cover  all  such  cases.  This,  as  a  case  settled 
upon  the  basis  of  the  common  law,  is  probably  of  great 
significance  for  the  subsequent  statutes. 

It  is  not  necessary  to  define  indecency.  There  was 
much  dissent  from  the  standards  of  the  late  Anthony 
Comstock  even  by  those  whom  he  would  have  accounted 
decent  people.  Doubtless  many  things  have  been  ac- 
counted indecent  in  the  past  which  now  are  suffered  or 
applauded.  It  does  not  follow  that  the  things  counted 
indecent  in  the  past  were  so  or  that  the  things  now 
applauded  are  decent;  all  that  we  can  say  is  that  what 
offends  the  general  sense  of  the  community  will  be  pun- 
ished as  indecent. 

Sunday  Laws 

STATE  OF  NEBRASKA  v.  TIM  O'ROURKE  et  Al. 

35  Neb.,  614,  1892 

(Milbum's  Curious  Cases,  p.  110.) 

This  case  need  not  be  set  forth  at  length.  The  de- 
fendants were  charged  with  violating  Sec.  241  of  the 


338  THE    PUBLIC    CONSCIENCE 

Criminal  Code  —  in  that  they  played  baseball  on 
Sunday. 

They  entered  a  plea  of  not  guilty  and  were  found 
not  guilty  by  the  county  judge  without  a  jury.  The 
judge  of  the  Supreme  Court  (on  appeal  by  the  county 
attorney)  said,  "  The  sole  question  involved  was  one 
of  fact  as  to  whether  or  not  they  had  violated  the  pro- 
visions of  the  statute  and  upon  this  finding  of  fact  the 
decision  of  the  court  is  final.  I  am  at  a  loss  to  deter- 
mine upon  what  question  of  law  exception  can  be 
taken,  the  question  being  solely  one  of  faet." 

Further  he  went  into  a  long  and  amusing  diatribe, 
very  learned  in  character,  against  the  inconsistencies 
of  the  various  states  in  their  obsolete  Sunday  laws  — 
but  concluded  by  afiirming  the  guilt  of  the  defendants 
on  the  ground  that  the  facts  had  not  been  impugned 
and  the  statute  stood.  It  was  the  business  of  the  court 
to  decide  in  accordance  with  the  facts  and  the  law. 


BOSWORTH   V.   INHABITANTS   OF   SWANSEY 
10  IMetcalf  363,  1845  — Smith  113 

The  plaintiff  sued  for  damages  received  by  him  in 
traveling  over  a  road  which  was  in  bad  repair.  The 
damages  were  unquestionable  and  the  bad  condition  of 
the  road  was  acknowledged.  The  defendants  also 
acknowledged  that  it  was  their  duty  to  keep  the  road 
in  repair. 


PUBLIC    ORDER    (DECENCY)  339 

Their  only  defense  was  that  the  plaintiff  was  travel- 
ing on  Sunday,  on  secular  business,  not  from  necessity 
or  charity. 

Shaw,  C.  J.,  held  that  to  maintain  this  action,  it 
must  appear  that  the  accident  was  occasioned  exclu- 
sively by  the  defect  of  the  highway;  to  establish  which 
it  must  appear  that  the  plauitiff  himself  is  free  from 
all  imputation  of  negligence  or  fault.  Now  the  stat- 
ute of  that  date  provided  that  "  no  person  shall  travel 
on  the  Lord's  Day,  except  from  necessity  or  charity." 
The  plaintiff  cannot  prove  necessity  or  charity. 

Verdict  for  the  defendants. 

Comynent.  Properly  speaking  this  is  a  case  of  observance 
of  statute,  not  a  Sunday  law  case.  iManj^  statutes  are 
habitually  broken  without  punishment,  simply  because  no 
one  brings  any  action  which  uncovers  the  statute.  Such 
Sunday  laws  as  the  above  have,  for  the  most  part,  been 
repealed.  There  are  many  similar  laws  unrepealed. 
They  do  no  harm  as  a  rule;  but,  now  and  then,  some  one 
zealous  for  what  they  once  represented,  brings  an  action; 
and  the  result  is  almost  always  a  conviction,  though  for 
a  nominal  fine  or  penalty.  It  is  the  plain  duty  of  every 
court  to  convict  those  offending  against  any  statute, 
however  archaic  or  ridiculous.  The  onh'  recourse  of  the 
court  is  the  imposition  of  a  nominal  penalt5^  Citizens 
disobey  any  statute,  no  matter  how  trivial  or  ridiculous, 
at  their  own  peril. 


340  THE    PUBLIC    CONSCIENCE 

SUTTON  V.  TOWN  OF  WAUWATOSA 
29  Wis.  21,  1871 

In  this  case  cattle  were  driven  on  to  a  bridge  which 
was  so  rotten  that  many  of  them  were  precipitated 
into  the  water,  some  drowned,  etc.  Damages  were 
claimed  and  the  trial  court  refused  damages  on  the 
ground  that  the  cattle  were  being  driven  on  a  Sunday. 
Plaintiff  appealed  and  Dixon,  C.  J.,  in  granting  a  new 
trial,  made  the  following  points:  The  plaintiff  was 
undoubtedly  doing  an  unlawful  act;  but  it  did  not 
constitute  contributory  negligence.  Cases  cited  may  be 
summed  up  as  follows:  "  There  are  two  just  and  plain 
principles.  First,  that  one  party  to  the  action,  when 
called  upon  to  answer  for  the  consequences  of  his  own 
wrongful  act  done  to  the  other,  cannot  allege  or  reply 
the  separate  or  distinct  wrongful  act  of  the  other,  done 
not  to  himself  or  to  his  injury,  and  not  necessarily  con- 
nected witl  ,  or  leading  to,  or  causing  or  producing  the 
wrongful  act  complained  of;  and,  secondly,  that  the 
fault,  want  of  due  care  or  negligence  on  the  part  of  the 
plaintiff,  which  will  preclude  a  recovery  for  the  injury 
complained  of,  as  contributing  to  it,  must  be  some  act 
of  the  plaintiff  having  the  relation  to  that  injury  of  a 
cause  to  the  effect  produced  by  it. 

...  It  is  obvious  that  a  violation  of  the  Sunday  law 
is  not  of  itself  an  act,  omission,  or  fault  of  this  kind, 
with  reference  to  a  defect  in  the  highway  or  in  a  bridge 


PUBLIC    ORDER    (DECENCY)  341 

over  which  a  traveler  may  be  passing,  unlawful  though 
it  may  be." 

Comment.  These  are  cited  merely  as  examples  of  cases 
which  may  arise  under  the  prohibition  of  work  or  amuse- 
ment on  that  day.  "  Works  of  necessity  or  mercy  "  now 
include  a  great  variety  of  things  certainly  not  originally 
contemplated;  and  about  all  that  is  left  of  the  old  pro- 
hibitions consists  of  the  forbidding  of  anything  which  dis- 
turbs public  worship  or  unduly  shocks  a  community.  And 
that,  very  naturally,  varies  with  the  community.  In 
Oregon,  Nov.  6,  1915,  a  Sunday  closing  law  which  had 
been  on  the  statutes  many  years  was  declared  invalid  on 
the  ground  that  it  specified  that  certain  lines  of  business 
should  not  be  conducted  on  the  "  Lord's  Day."  The  court 
held  this  to  be  religious  discrimination.  This  has  its 
place  in  a  Liberty  classification  too. 


COMMONWEALTH  v.  MARSHALL 
Supreme  Judicial  Court  of  Massachusetts,  1831 

(Reported  11  Pick.,  350.    Beale,  18,  3d  ed.) 

Defendants  were  indicted  for  a  misdemeanor  in  dis- 
interring a  dead  body.  This  would  have  been  an  of- 
fense under  the  common  law;  but  by  a  statute  of 
1814  the  common  law  was  superseded  and,  although 
the  statute  was  subsequently  repealed,  the  act  charged 
upon  the  defendants  as  an  offense  was  done  after  the 
passing  of  the  statute  of  1814  and  before  that  of  1830. 
The  act  cannot  be  punished  as  an  offense  at  common 
law;  for  that  was  not  in  force  during  the  existence  of 


342  THE    PUBLIC    CONSCIENCE 

the  statute;  nor  by  the  statute  of  1814,  because  it  has 
been  repealed  without  any  saving  clause;  nor  by  the 
statute  of  1830,  for  the  act  was  done  before  that  stat- 
ute was  passed. 

No  judgment  on  this  indictment. 

Comment.  Here  is  a  clear  case  of  failure  of  justice.  The 
act  done  was  an  offense  against  decency  but  it  went  un- 
punished because  of  technicalities. 


Selling  Liquor 
COMMONWEALTH  v.  CHURCHILL 

Massachusetts,  1840 

(Beale,  34,  2d  ed.) 

In  the  Court  of  Common  Pleas  the  defendant  was 
convicted  for  selling  liquor  without  a  Hcense.  He  ap- 
pealed to  the  Supreme  Court  on  the  unconstitutionality 
of  certain  statutes  upon  which  the  conviction  was 
based  and  because  the  statutes  themselves  had  been 
subsequently  repealed.  "  It  is  conceded  (says  Shaw, 
C.J.,)  "  to  be  a  maxim  of  the  common  law,  applicable 
to  the  construction  of  statutes,  that  the  simple  repeal 
of  a  repealing  law,  not  substituting  other  provisions 
in  place  of  those  repealed,  revives  the  pre-existing 
law." 

It  was  held  that  the  common  law  existed  in  the  state 
of  Massachusetts  before  the  Revolution  —  and  its  pro- 
visions relate  partly  to  the  rules  of  construction  for  the 


PUBLIC    ORDER    (DECENCY)  343 

expounding  of  statutes.  The  statute  in  question  which 
had  indeed  been  repealed,  simply  revived  a  previous 
statute,  under  which  the  defendants  were  equally 
guilty. 

The  exceptions  taken  by  the  defendants  were  over- 
ruled and  the  conviction  stood. 


Neglect  of  Education 

REX  V.  WILLIAM  SMITH 

2  Carrington  &  Payne  449,  1826 

George  Smith,  a  man  of  about  forty  years  of  age, 
was  an  idiot,  in  the  care  of  his  brothers  and  a  sister. 
An  investigation  showed  that  he  was  kept  in  a  dark 
and  filthy  room  without  proper  care  of  any  sort. 

He  had  been  left  an  annuity  of  £50.  The  complaint 
alleged  that  it  was  the  duty  of  his  brothers  and  sister 
to  care  for  him  properly. 

Burrough,  J.,  said,  "  I  am  clearly  of  opinion,  that, 
on  the  facts  proved,  there  is  no  assault  and  no  imprison- 
ment in  the  eyes  of  the  law.  In  the  case  of  Squires 
and  his  wife  for  starving  the  apprentice,  the  husband 
was  convicted,  because  it  was  his  duty  to  maintain  the 
apprentice,  and  the  wife  was  acquitted,  because  there 
was  no  such  obligation  on  her.  I  expected  to  have 
found  in  the  will  of  the  father,  that  the  defendants  were 
bound,  if  they  took  the  father's  property,  to  maintain 
this  brother;  but  under  the  will  they  are  only  bound 


344  THE    PUBLIC    CONSCIENCE. 

to  pay  him  £50  a  year,  and  not  bound  to  maintain  him. 
William  Smith  appears  to  have  been  the  owner  of  the 
house,  and  Thomas  and  Sarah  were  mere  inmates  of  it, 
as  their  idiot  brother  might  be;  and  how  can  I  tell 
the  jury  that  either  of  the  defendants  has  such  care 
of  this  unfortunate  man  as  to  make  them  criminally 
liable  for  omitting  to  attend  to  him.  There  is  strong 
proof  that  there  was  some  negligence ;  but  my  point  is, 
that  omission  without  a  duty  will  not  create  an  indict- 
able offense.  (Italics  mine,  g.c.c.)  There  is  a  defi- 
ciency of  proof  of  the  allegation  of  care,  custody  and 
control,  which  must  be  taken  to  be  legal  care,  custody 
and  control.  Whether  an  indictment  might  be  so 
framed  as  to  suit  this  case,  I  do  not  know;  but  on 
this  indictment  I  am  clearly  of  opinion  that  the 
defendants  must  be  acquitted.  (Verdict  —  Not 
guilty.) 

The  indictment  had  been  for  assault,  imprisonment 
and  neglect. 


Public  Order  and  Peace 

PEOPLE  V.  WALLACE  AND  LAKE 

New  York  85  App.  Div.,  70 

The  defendants,  under  notice  from  an  organizer  of 
the  Socialist  Labor  Party,  held  a  meeting  in  Amster- 
dam, N.  Y.,  on  Sept.  21,  1901,  requesting  the  poHce  to 
preserve  order  at  the  time.    They  neither  sought  for 


PUBLIC    ORDER    (DECENCY)  345 

nor  obtained  a  permit;  and  when  the  Chief  of  Police 
found  them  haranguing  a  gathering  crowd  from  dry 
goods  boxes  placed  in  the  street  near  the  curb,  they 
denied  the  need  of  a  permit.  Lake  said,  "  I  told  him 
the  Socialist  Labor  Party  was  a  regular  political  party 
which  occupied  the  third  column  on  the  official  ballot 
of  New  York  State,  and  that  the  Constitution  of  the 
United  States  granted  the  right  of  free  speech,  and  the 
public  assemblage  of  people  in  any  highway  of  the 
country  and  we  didn't  need  a  permit  from  any  mayor 
to  exercise  that  right." 

The  police  several  times  tried  to  keep  a  passage  way 
in  the  streets  which  had  become  blocked,  though  not 
completely.  They  told  Lake  he  was  obstructing  the 
street  and  would  have  to  stop  speaking.  He  declined 
to  do  so,  saying  that,  if  the  streets  were  not  clear  it 
was  the  duty  of  the  police  to  keep  them  clear.  The 
officers  then  attempted  to  clear  the  sidewalks  and  street 
without  interfering  with  the  speaker,  and  they  were 
unable  to  do  so.  The  crowd  increased  in  number  and 
the  whole  police  force  of  the  city  was  summoned  but 
could  not  keep  the  crowd  in  order.  The  boxes  were 
put  on  the  sidewalk  but  the  defendants  took  them 
back  to  the  street.  There  was  much  disorder  and 
many  threats  were  heard.  One  man  was  struck  by  a 
stone. 

Finally  the  police  arrested  the  defendants  and  took 
them  to  the  police  station,  after  which  the  crowd  was 
easily  dispersed. 

This  account  is  condensed   from   the  opinion  of 


346  THE    PUBLIC    CONSCIENCE 

Chase,  J.  In  the  trial  court  the  defendants  were  con- 
victed of  a  misdemeanor.  The  punishment  given  is 
not  stated  in  the  above  authority. 

The  Appellate  Court  confirmed  this  conviction. 
Chase,  J.,  saying  (opinion  condensed  but  in  his  words), 
"  The  question  of  the  constitutional  right  of  citizens  to 
peaceably  assemble  and  discuss  public  questions  is  not 
before  us  for  discussion,  neither  is  it  necessary  to  de- 
termine whether  such  constitutional  right  authorizes  a 
person  to  hold  a  public  meeting  in  a  public  street  with- 
out the  permission  of  the  municipality.  Streets  and 
highways  are  for  the  use  of  all  the  public  to  pass  and 
repass  thereon,  and  it  is  the  duty  of  the  police  author- 
ities of  a  city  to  see  that  a  reasonable  passage  way  is 
preserved.  That  the  public  peace  was  seriously  dis- 
turbed and  endangered  at  the  time  of  the  defendants' 
arrest  cannot  be  doubted  by  any  one  who  examines 
the  record  herein.  Whether  such  serious  disturbance 
and  danger  was  caused  by  the  defendants  was  a  ques- 
tion of  fact  presented  to  the  jury  after  all  the  parties 
had  had  a  full  and  fair  opportunity  to  present  their 
evidence  in  relation  thereto.  ...  It  is  reasonably  cer- 
tain that  the  persistence  of  the  defendants  in  dragging 
their  boxes,  etc.,  and  in  haranguing  the  crowd  .  .  . 
were  at  that  particular  time  the  immediate  causes  of 
the  serious  disturbance  and  danger  to  the  public  peace. 
As  said  by  the  Court  of  Appeals  in  People  v.  Most: 
'  A  breach  of  the  peace  is  an  offense  well  known  to  the 
common  law.  It  is  a  disturbance  of  public  order  by  an 
act  of  violence,  or  by  any  act  hkely  to  produce  violence, 


PUBLIC    ORDER    (DECENCY)  347 

or  which  by  causing  consternation  and  alarm  disturbs 
the  peace  and  quiet  of  the  community.' " 

Comment.  There  can  be  no  doubt  that  this  is  the  law.  It 
is  to  be  observed,  however,  that  streets  are  frequently 
blocked  by  crowds  which  the  police  make  no  endeavor 
to  disperse.  This  is  on  those  occasions  when  the  crowd  is 
gathered  for  some  reason  in  the  manifest  interest  of  the 
whole  people  as,  e.g.,  on  patriotic  occasions  like  the  re- 
turn of  troops  from  war.  There  are  few  gatherings  of  a 
riotous  character  except  those  incited  by  the  opposition. 
This  is  not  said  in  criticism  or  with  any  wish  to  express 
a  partisan  attitude  but  simply  to  call  attention  to  a  fact. 
There  is  no  need  to  gather  a  crowd  to  support  what  every 
one,  or  the  majority,  is  already  supporting. 


Offense   against   the    Common   Weal 

REGINA  V,  STEPHENS 

Queen's  Bench,  1866 

(Reported  L.  R.  1  Q.  B.,  702.    Beale,  252,  3d  ed.) 

The  defendant  was  owner  of  a  slate  quarry  on  the 
river  near  the  castle  of  Kilgerran,  which  he  had  exten- 
sively worked  since  1842,  Rubbish  from  the  quarries 
had  been  stacked  five  or  six  yards  from  the  river  and 
held  back  by  a  wall;  but  in  1847  a  flood  swept  away 
this  wall  and  rubbish.  Quantities  of  additional  rubbish 
were  from  time  to  time  deposited  on  the  bank  and 
allowed  by  workmen  to  slide  down  into  the  river  and 
obstruct  navigation.    It  was  offered  in  evidence  that 


348  THE    PUBLIC    CONSCIENCE 

workmen  had  been  instructed  not  to  deposit  rubbish 
at  this  place  but  the  judge  intimated  that  this  evi- 
dence was  immaterial;  and  he  directed  the  jury  that  as 
the  defendant  was  the  proprietor  of  the  quarry,  it 
was  his  duty  to  take  all  proper  precautions,  etc.,  and 
that  if  a  nuisance  was  caused  by  his  workmen,  even 
without  his  knowledge  and  against  his  orders,  it  was 
his  act.  The  jury  found  a  verdict  of  guilty  —  obstruct- 
ing navigation  of  a  public  river. 

On  motion  for  a  new  trial,  Mellor,  J.,  sustained  the 
decision  saying,  "  It  is  quite  true  that  this  in  point 
of  form  is  a  proceeding  of  a  criminal  nature,  but  in 
substance  I  think  it  is  in  the  nature  of  a  civil  proceed- 
ing. .  .  .  Here  it  is  perfectly  clear  that  the  only  rea- 
son for  proceeding  criminally  is  that  the  nuisance, 
instead  of  being  merely  a  nuisance  affecting  an  in- 
dividual, or  one  or  two  individuals,  affects  the  public 
at  large  and  no  private  individual,  without  receiving 
some  special  injury,  could  have  maintained  an  action. 
...  If  the  contention  of  those  who  say  the  direction 
is  wrong  is  to  prevail,  the  public  would  have  great 
difficulty  in  getting  redress." 

Blackburn,  J.,  wished  to  guard  himself  "  against  it 
being  supposed  that  the  general  rule  that  a  principal 
is  not  criminally  liable  for  the  act  of  the  agent  is  in- 
fringed. All  that  is  necessary  to  say  is  this,  that 
where  a  person  maintains  works  by  his  capital,  and 
employs  servants,  and  so  carries  on  the  work  as  in  fact 
to  cause  a  nuisance  to  a  private  right,  for  which  an 
action  would  lie,  if  the  same  nuisance  inflicts  an  in- 


NATURAL    LAW    FOR    SECURITY         349 

jury  upon  a  public  right,  the  remedy  for  which  would 
be  by  indictment,  the  evidence  which  would  maintain 
the  action  would  also  support  the  indictment.  That  is 
all  that  it  was  necessary  to  decide  and  all  that  is 
decided." 

Comment.  Qui  facit  per  alium  facit  per  se.  A  manufac- 
turer or  employer  of  labor  is  responsible  for  the  acts  of 
his  workmen,  and  is  open  to  a  claim  for  damages;  but 
further,  and  importantly,  it  is  decided  that  the  public's 
rights  cannot  be  set  lower  than  those  of  any  individual. 
And  as  an  individual  can  bring  action  for  a  nuisance,  so 
can  the  public.  The  opinion  of  Justice  Blackburn  is  very 
pertinent.  Our  interest  is  not  in  the  form  of  procedure, 
which  he  defends,  but  in  the  security  of  the  public  which 
the  decision  defends. 

THE  NATURAL  LAW  OF  OFFENSES 
AGAINST  SECURITY 

The  nature  of  these  ojffenses  implies  that  there  have 
been  established  certain  very  definite  values  —  such 
as  life,  integrity  of  the  person,  property,  reputation  and 
the  like.  The  offenses  here  considered  are  not  direct 
attacks  upon  life  or  upon  property  but  rather  upon  that 
secure  possession  of  them  which  constitutes  one  of 
man's  most  prized  privileges.  It  has  its  culmination 
and  most  concrete  expression  in  the  idea  of  Public 
Order  or  Decency. 

These  offenses  too  are  classed,  not  according  to  the 
degree  of  reprobation  manifested  toward  them  by 
society,  but  according  to  their  nature,  those  cases  be- 


350  THE    PUBLIC    CONSCIENCE 

ing  grouped  together  which  have  some  sort  of  afi&nity. 
In  consequence  there  is  no  gradation  from  that  which 
is  most  reprobated  down  (or  up)  to  those  either  con- 
doned or  positively  praised;  except  that  it  is  obvious 
that  the  most  serious  offense  is  treason  and  that  any- 
thing which  would  betray  an  open  enemy  of  the  group 
would  be  considered  highly  meritorious. 

Some  of  the  offenses  are  very  complex  and  it  is 
almost  impossible  to  analyze  them.  For  example,  kid- 
napping, adultery  and  seduction  may  also  be  assaults 
although  they  need  not  be.  All  the  offenses  under  the 
caption  Reputation  are  capable  of  becoming  property 
cases.  Inciting  to  murder  is  pretty  close  to  plain 
murder. 

There  is  no  clear  law  outstanding  from  the  multi- 
tudes of  cases  under  "  security  "  except  one  which  I 
formulated  tentatively  some  years  ago.^ 

The  group  punishes  severely  anything  which 
threatens  group  continuance.  Treason  is  never  for- 
given if  known  to  exist.  If  the  group  is  to  survive, 
treason  in  any  form,  when  known,  must  he  visited  with 
death,  at  least  during  times  of  stress. 

Lack  of  attention  and  old  custom  alone  are  respon- 
sible for  society's  neglect  of  things  more  directly  sub- 
versive of  its  principle  than  some  which  are  severely 
reprobated. 

This  seems  more  like  an  impressionistic  sketch  than 
a  law.    Let  us  not  think  of  it  as  the  law  but  rather 

^  Case  Method  in  the  Study  and  Teaching  of  Ethics  op.  cit., 
p.  345. 


NATURAL    LAW    FOR    SECURITY         351 

as  prolegomena  to  a  law  which  should  then  be  formu- 
lated as  follows: 

Individual  action  is  always  subordinated  to  group 
stability;  and  anything  which  threatens  the  security 
of  the  group  in  the  opinion  of  the  authorities  of  the 
group  will  be  treated  as  a  crime. 

But  individualistic  action  seems  to  be  approved  by 
the  group  in  many  ways.  The  English  and  American 
traditions  are  based  upon  Magna  Charta  and  various 
Bills  of  Rights  which  speak  much  of  the  rights  and 
liberties  of  individuals.  This  is  indeed  the  principle 
upon  which  our  security  is  based,  to  give  as  much  scope 
to  the  individual  as  possible;  but  it  is  always  limited 
by  the  group  needs. 

Observe  particularly  that  the  principle  caveat  emp- 
tor, —  let  the  buyer  beware,  —  is  highly  individuaUstic 
—  but  note  also  that  this  principle  no  longer  holds 
sway  except  where  it  has  been  overlooked.  We  have 
Pure  Food  Laws  and  the  like,  standards  of  weights 
and  measures,  Blue  Sky  Laws,  Workmen's  Com- 
pensation Acts  and  a  multitude  of  other  similar 
things  to  indicate  that  the  individual  is  protected 
in  the  interest  of  society  against  other  individuals 
instead  of  being  left,  as  on  the  laissez-faire  theory 
of  government,  to  fight  it  out  with  them  as  best 
he  may. 

So  the  Standard  Oil  Case  and  all  others  under  the 
Sherman  Law  apparently  indicate  a  tenderness  for 
the  individual.  But  this  is  not  really  true.  Enhanced 
prices  were  thought  to  be  due  to  restriction  of  compe- 


352  THE    PUBLIC    CONSCIENCE 

tition,  hence  competition  must  be  left  unrestricted  in 
the  interest  of  the  group.  Moreover  the  English  deci- 
sion in  the  Mogul  Steamship  Company  Case  (q.v.)  is 
distinctly  restrictive  of  competition  in  the  interest  of 
the  group.  It  must  be  noted  too  that  restraint  of 
trade  was  not  an  offense  at  common  law ;  it  was  made 
so  by  statute  and  only  for  the  reason  given  above. 
Modern  opinion  that  Big  Business  is  not  necessarily 
Bad  Business  shows  the  swing  of  the  pendulum  and 
makes  plain  that  the  individual  per  se  is  not  being 
considered. 

The  law  of  the  past  has  tended  to  treat  individuals 
as  separate  sovereigns  with  whom  one  might  interfere 
at  his  peril.  Whatever  they  did  to  one  another  was 
indifferent  to  society.  The  Common  Law  attitude 
towards  adultery  and  fornication  (except  the  adultery 
of  the  wife,  seduction,  etc.,  which  offend  a  property 
right)  is  an  example  of  this.  Except  where,  under  the 
influence  of  the  Canon  Law  (Law  of  the  Church),  some 
religious  motive  enters  in,  society  is  indifferent  to  what 
men  do  to  one  another  so  long  as  it  does  not  influence 
the  group.  The  adoption  of  the  Canon  Law  rule  con- 
cerning adultery  rather  than  the  Common  Law  is  due 
partly,  at  least,  —  in  my  opinion  at  any  rate  —  to  a 
feeling  that  the  public  order  and  decency  have  been 
disturbed.  Modern  liberality  in  the  treatment  of  blas- 
phemy cases  is  an  apparent  contradiction  of  this  rule 
since  it  seems  to  leave  room  for  individualism,  but  it 
is  more  likely  that  the  public  realizes  that  there  is 
no  danger  to  its  peace  and  safety  in  such  utterances 


NATURAL    LAW    FOR    SECURITY         353 

and  so  individuals  may  be  left  free  in  things  in- 
different. 

Various  courts  have  decided,  especially  in  labor  cases, 
that  every  man  has  a  right  to  conduct  his  business  to 
suit  himself  —  yet  labor  unions  have  been  repeatedly 
upheld  and  picketing  has  been  held  to  be  legal.  The 
opinions  of  Justice  Holmes,  especially,  show  the  refusal 
to  be  bound  by  an  Eighteenth  Century  conception  of 
society  with  its  extreme  individualism.  This  is  inter- 
esting in  itself  but  important  here  simply  as  the  coming 
to  consciousness  of  a  permanent  and  universal  charac- 
teristic of  legislation  and  judicial  decision;  for,  in  spite 
of  all  appearances  to  the  contrary,  it  has  always  been 
the  tendency  of  social  groups. 

The  deliberate  and  conscious  practice  of  the  Federal 
Government,  according  to  the  Constitution,  in  its  deal- 
ings with  the  states  of  the  Union  will  well  exemplify 
the  attitude  of  society  towards  its  constituent  members. 
They  may  act  towards  one  another  as  sovereign  states 
except  where  the  interests  of  the  Federal  Government 
are  threatened.  In  that  case  they  will  be  rigorously 
suppressed.  This  will  be  much  more  evident  in  our 
summing  up  in  cases  under  the  classification  Liberty 
and  further  consideration  of  it  is  postponed. 

I  do  not  think  the  formulation  of  more  detailed  laws 
at  this  point  is  either  profitable  or  desirable.  Indeed 
this  law  is  purely  tentative  and  meant  to  serve  as  a 
guide  only. 

It  may  be  added  that  it  is  probably  the  instinct  for 
security  which  demands  such  strict  attention  to  mak- 


354  THE    PUBLIC    CONSCIENCE 

ing  some  one  responsible  in  damages,  if  not  criminally, 
even  though  it  be  a  child,  an  idiot  or  an  insane  person 
—  and  insists  upon  the  principle  of  agency,  qui  facit 
per  alium  jacit  per  se.  Even  righteousness  of  inten- 
tion cannot  abolish  this  responsibility. 


PART   IV 

PRESERVATION    OF   LIBERTY 


X 


Offens^ 


/.   Interference  w\ 
Bodily  Freedi 


II.   Interference  w\ 
Freedom 
Movement 


# 

LIBERTY   CASES 

Offenses  against  liberly  and  legal  or  approved  interferences  with  or 

restrictions  of  liberty 

I    Interference  with   1  '■^Sal  in  past  times  and  still  in  (  .Slavery 

Bodily  Freedom^      =  of'crstindoT""    j  S„t^ 

White  Slavery 

ifl)  Illegal                                       Kidnapping  (Press  Gang) 

False  Imprisonment  —  Habeas  Corpus 

//.    Interference  with 

i  Immigration  Laws 
Emigration  Laws 

Freedom        of 

Requirement  of  Passports 

Movement 

(b)  Legal                                         Restricted  districts 
Jim  Crow  Cars 
Ghettoes 
Restriction  of  Right  of  Assembly 

(a)  Ca^ying  Weapons              (  g]  S^Sled 

(1)  Ordinary    regulations     regarding 

traffic,      building      operations, 

streets,    lights,   signs,    licenses, 

etc. 

(2)  Police  power  of  state  apphed  to: 

Labor  Unions 

(b)  Police  Regulations 

Manufacturers'  Associations 
Trust  Regulations 
R.  R.  rates,  etc. 
Hours  of  Labor 
Employers'  Liability 

tit    Interference  with 

Workmen's  Compensation 

Freedom  of  Ac- 

Strikes and  Picketing 

tion 

Blacklisting 
(3)  Offenses  against  security 

Taxation,  including  tariffs  and  licenses 
Franchises 
Eminent  domain 
Rights  of  way 

ici  Freedom      in      Property 

Pubhc  Hotels,  Inns,  etc. 

Rights 

Common  Carriers 

Contract 

Rights  to  means  of  livelihood  (tools 

of  trade,  homestead,  etc.) 
Trade 

Marriage  and  divorce  laws 

Worship 

Being  put  in  fear 

Speech  —  Hbel  —  contempt  of  court 

Pohtical  action 

IV.  Interference  with 

Suffrage — 14th  amendment  —  Grand- 

Freedom        in 

Legal 

father  clause 

Personality 

Association 

L6se  Majesty 

Injunctions 

Sumptuary  Laws 

Propaganda  cf.  Worship  and  Speech 

Prohibition 

<m 

<^ 

PROVISIONS    OF   THE    CONSTITUTION    OF 

THE  UNITED   STATES   WITH   RESPECT 

TO   LIBERTY 

Article  I  —  Section  8.  The  Congress  shall  have 
power  to  lay  and  collect  taxes,  duties,  imposts  and  ex- 
cises, to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States;  but 
all  duties,  imposts  and  excises  shall  be  uniform 
throughout  the  United  States. 

...  To  regulate  commerce.  ...  To  establish  a  uni- 
form rule  of  naturalization  .  .  .  Section  9.  The  privi- 
lege of  the  Writ  of  Habeas  Corpus  shall  not  be 
suspended,  unless  when  in  cases  of  rebellion  or  in- 
vasion the  public  safety  may  require  it. 

Article  III  —  Section  2,  .  .  .  The  trial  of  all  crimes, 
except  in  cases  of  impeachment,  shall  be  by  jury; 

Article  IV  —  Section  2.  The  citizens  of  each  state 
shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  states. 

A  person  charged  in  any  state  with  treason,  felony  or 
other  crime,  who  shall  flee  from  justice,  and  be  found 
in  another  state,  shall  on  demand  of  the  executive 
authority  of  the  state  from  which  he  fled,  be  delivered 
up  to  be  removed  to  the  state  having  jurisdiction  of  the 
crime. 

No  person  held  to  service  or  labor  in  one  state,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  con- 

357 


358  THE    PUBLIC    CONSCIENCE 

sequence  of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may 
be  due. 

Amendments 

Article  I.  Congress  shall  make  no  law  respecting 
an  establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof;  or  abridging  the  freedom  of  speech, 
or  of  the  press;  or  the  right  of  the  people  peaceably  to 
assemble,  and  to  petition  the  Goverment  for  a  redress 
of  grievances. 

Article  II.  A  well  regulated  militia,  being  necessary 
to  the  security  of  a  free  State,  the  right  of  the  people 
to  keep  and  bear  arms,  shall  not  be  infringed. 

Article  III.  No  soldier  shall,  in  time  of  peace,  be 
quartered  in  any  house,  without  the  consent  of  the 
owner,  nor  in  time  of  war,  but  in  a  manner  to  be  pre- 
scribed by  law. 

Article  IV.  The  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects,  against  un- 
reasonable searches  and  seizures,  shall  not  be  violated, 
and  no  warrants  shall  issue,  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

Article  V.  No  person  shall  be  held  to  answer  for  a 
capital,  or  otherwise  infamous  crime,  unless  on  a  pre- 
sentment or  indictment  of  a  Grand  Jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the 


PROVISIONS    RESPECTING    LIBERTY     359 

militia,  when  in  actual  service  in  time  of  war  or  public 
danger;  nor  shall  any  person  be  subject  for  the  same 
offense  to  be  twice  put  in  jeopardy  of  life  or  limb;  nor 
shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself,  nor  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law ;  nor  shall  private 
property  be  taken  for  public  use,  without  just  compen- 
sation. 

Article  VI.  In  all  criminal  prosecutions,  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law, 
and  to  be  informed  of  the  nature  and  the  cause  of  the 
accusation ;  to  be  confronted  with  the  witnesses  against 
him;  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor;  and  to  have  the  assistance  of 
counsel  for  his  defence. 

Article  VII.  In  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the 
right  of  trial  by  jury  shall  be  preserved,  and  no  fact 
tried  by  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules 
of  the  common  law. 

Article  VIII.  Excessive  bail  shall  not  be  required, 
nor  excessive  fines  imposed,  nor  cruel  and  unusual 
punishments  inflicted. 

Article  IX.  The  enumeration  in  the  Constitution, 
of  certain  rights,  shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people. 


360  THE    PUBLIC    CONSCIENCE 

Article  X.  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to 
the  people. 

Article  XIII  —  Section  1.  Neither  slavery  nor  invol- 
untary servitude,  except  as  a  punishment  for  crime 
whereof  the  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States,  or  any  place  subject  to 
their  jurisdiction. 

Article  XIV  —  Section  1.  All  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States; 
nor  shall  any  State  deprive  any  person  of  life,  liberty 
or  property,  without  due  process  of  law;  nor  deny  to 
any  person  within  its  jurisdiction,  the  equal  protec- 
tion of  the  laws. 

Article  XV  —  Section  1.  The  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  by  any  State,  on  account  of 
race,  color  or  previous  condition  of  servitude.  .  .  . 

Article  XVI.  The  Congress  shall  have  power  to  lay 
and  collect  taxes  on  incomes,  from  whatever  source  de- 
rived, without  apportionment  among  the  several  states, 
and  without  regard  to  any  census  or  enumeration. 

Article  XVIII  —  Section  1.  After  one  year  from  the 
ratification  of  this  article  the  manufacture,  sale  or 
transportation  of  intoxicating  liquors  within,  the  im- 


PROVISIONS    RESPECTING    LIBERTY     361 

portation  thereof  into,  or  the  exportation  thereof  from 
the  United  States  and  all  territory  subject  to  the  juris- 
diction thereof  for  beverage  purposes  is  hereby  pro- 
hibited. 


Definition  of  Liberty 
ALLGEYER    v.  LOUISIANA 

165  U.  S.  578  (1897) 

Mr.  Justice  White  said  "  Liberty  means  not  only  the 
right  of  the  citizen  to  be  free  from  the  mere  physical 
restraint  of  his  person,  as  by  incarceration,  but  the  term 
is  deemed  to  embrace  the  right  of  the  citizen  to  be 
free  in  the  enjoyment  of  all  his  faculties;  to  be  free 
to  use  them  in  lawful  ways ;  to  live  and  work  where  he 
will;  to  earn  his  livelihood  by  any  honest  calling; 
to  pursue  any  livelihood  by  any  honest  calling;  to 
pursue  any  livelihood  or  avocation,  and  for  that  pur- 
pose to  enter  into  all  contracts  which  may  be  proper, 
necessary  and  essential  to  his  carrying  out  to  a  suc- 
cessful conclusion  the  purposes  above  mentioned.  In 
the  privilege  of  pursuing  an  ordinary  calling  or  trade 
and  acquiring,  holding  and  selling  property,  must  be 
embraced  the  right  to  make  all  proper  contracts  in  re- 
lation thereto."  (Condensed  by  Justice  Swayze  from 
the  opinion.)  Later  decisions  have  limited  this  broad 
definition. 

Mr.  Justice  Hughes  said  (C  B.  &  Q.  R.  R.  Co.  v. 
McGuire,  219  U.  S.  549  et  passim) :     "  There  is  no 


362  THE    PUBLIC    CONSCIENCE 

absolute  freedom  to  do  as  one  wills  or  to  contract  as 
one  chooses.  The  guaranty  of  liberty  does  not  with- 
draw from  legislative  supervision  that  wide  depart- 
ment of  activity  which  consists  of  the  making  of  con- 
tracts, or  deny  to  government  the  power  to  provide 
restrictive  safeguards.  Liberty  implies  the  absence  of 
arbitrary  restraint,  not  immunity  from  reasonable 
regulations  and  prohibitions  imposed  in  the  interests 
of  the  community. 

The  right  to  make  contracts  is  subject  to  the  exer- 
cise of  the  powers  granted  to  Congress  for  the  suitable 
conduct  of  matters  of  national  concern,  as  for  example 
the  regulation  of  commerce  with  foreign  nations  and 
among  the  several  states. 

It  is  subject  also,  in  the  field  of  state  action,  to  the 
essential  authority  of  government  to  maintain  peace 
and  security,  and  to  enact  laws  for  the  promotion  of 
the  health,  safety,  morals  and  welfare  of  those  subject 
to  its  jurisdiction." 


Public  Expressions  Regarding  Liberty  from 
various  sources 

"  Taxed  or  deprived  of  their  property  for  public 
uses."  Virg.  Decl.  Rights  VI. 

"  No  man  to  be  deprived  of  liberty  except  by  the  law 
of  the  land  or  the  judgment  of  his  peers."     Do.  VIII. 

"  The  law  ought  to  prohibit  only  actions  hurtful  to 
society.     What  is  not  prohibited  by  the  law,  should 


PROVISIONS    RESPECTING    LIBERTY     363 

not  be  hindered;  nor  should  any  one  be  compelled  to 
that  which  the  law  does  not  require." 
Declaration  of  the  Rights  of  Man,  V.  French,  1789. 

"  The  unrestrained  communication  of  thoughts  and 
opinions  being  one  of  the  most  precious  rights  of  man, 
every  citizen  may  speak,  write,  and  publish  freely,  pro- 
vided he  is  responsible  for  the  abuse  of  this  liberty,  in 
cases  determined  by  the  law." 
Do.  XI,  par.  7.    Cf.  also  French  Const.,  June  24,  1793. 

"  The  right  to  property  being  inviolable  and  sacred 
no  one  ought  to  be  deprived  of  it,  except  in  cases  of 
evident  public  necessity,  legally  ascertamed,  and  on 
condition  of  a  previous  indemnity." 

Cf.  also  Const.  June,  1793,  par.  17  and  19. 

2  "  Ces  droits  sont  I'egalite,  la  liberte,  la  surete,  la 
propriete. 

Prefix  to  Const,  of  June  24,  1793  —  France. 

14  "  Nul  ne  doit  etre  juge  ou  puni  qu'apres  avoir 
ete  entendu  ou  legalement  appele,  et  qu'en  vertu  d'une 
loi  promulgee  anterieurement  au  delit.  La  loi  qui 
punirait  des  Jelits  commis  avant  qu'elle  existat,  serait 
une  tyrannie;  I'effet  retroactif  donne  a  la  loi  serait 
un  crime."  Do. 

31  "  Les  delits  des  mandataires  du  peuple  et  de  ses 
agens  ne  doivent  etre  jamais  impunis.    Nul  n'a  le  droit 
de  se  pretendre  plus  inviolable  que  les  autres  citoyens." 
Do.    Cf.  also  Devoirs,  in  Declaration,  1795. 


364  THE    PUBLIC    CONSCIENCE 

1.  Celui  qui  viole  ouvertment  les  lois,  se  declare  en 
etat  de  guerre  avec  la  societe. 

7.  Celui  qui,  sans  enfreindre  les  lois,  les  elude  par 
ruse  ou  par  addresse,  blesse  les  interets  de  tous;  il  se 
rend  indigne  de  leur  bienveillance  et  de  leur  estime. 

8.  C'est  sur  le  maintien  des  proprietes  que  repose  la 
culture  des  terres,  toutes  les  productions,  tout  moyen 
de  travail  et  tout  I'ordre  social. 

9.  Tout  citoyen  doit  ses  services  a  la  patrie  et  au 
maintien  de  la  liberte,  de  I'egalite  et  de  la  propriete, 
tout  les  fois  que  la  loi  I'appelle  a  les  defendre. 

All  the  above  from  the  Appendix  to  Ritchie's 
"  Natural  Rights." 


I.    INTERFERENCE    WITH    BODILY 
FREEDOM 

Slavery 

Mr.  Henry  W.  Nevinson  in  his  book  Modern  Slavery, 
speaking  of  slavery  in  the  Portuguese  province  of  An- 
gola in  West  Central  Africa,  shows  that  while  men  are 
bought  and  sold  as  slaves,  it  is  done  in  the  form  of  con- 
tract.   He  uses  these  words  : 

"  Legally  the  system  is  quite  simple  and  looks  inno- 
cent enough.  Legally  it  is  laid  down  that  a  native  and 
a  would-be  employer  come  before  a  magistrate  or  other 
representative  of  the  Curator  General  of  Angola  and 


BODILY    FREEDOM  365 

enter  into  a  iree  and  voluntary  contract  for  so  much 
work  in  return  for  so  much  pay.  By  the  wording  of 
the  contract  the  native  declares  '  that  he  has  come  of 
his  own  free  will  to  contract  for  his  services  and  accord- 
ing to  the  forms  required  by  the  law  of  April  29,  1875, 
the  general  regulation  of  November  21,  1878,  and  the 
special  clauses  relating  to  this  province.'  " 

He  signs  and  the  benevolent  law  is  satisfied.  And 
then,  Mr.  Nevinson  adds: 

"  If  he  runs  away  he  will  be  beaten,  and  if  he  could 
escape  to  his  home  ...  he  would  probably  be  killed, 
and  almost  certainly  be  sold  again  ( ! ) .  In  what  sense 
does  such  a  man  enter  into  a  free  contract  for  his  labor? 
In  what  sense,  except  according  to  law,  does  his  position 
differ  from  a  slave?  And  the  law  does  not  count;  it  is 
only  life  that  counts.  .  .  . 

"  The  difference  between  the  '  contract  labor '  of 
Angola,  and  the  old-fashioned  slavery  of  our  grand- 
fathers' time  is  only  a  difference  of  legal  terms.  In 
life  there  is  no  difference  at  all.  The  men  and  women 
whom  I  have  described  as  I  saw  them  have  all  been 
bought  from  their  enemies,  their  chiefs,  or  their 
parents;  they  have  either  been  bought  themselves  or 
were  the  children  of  people  who  had  been  bought.  The 
legal  contract,  if  it  had  been  made  at  all,  had  not  been 
observed,  either  in  its  terms  or  its  renewal.  The  so- 
called  pay  by  the  plantation  tokens,  is  not  pay  at  all, 
but  a  form  of  the  '  truck '  system  at  its  very  worst." 

Professor  Paul  S.  Reinsch  confirms  this  in  the  follow- 
ing statement: 


366  THE    PUBLIC    CONSCIENCE 

"  Today  the  slave  trade  is  carried  on  covertly  under 
the  name  of  contract  labor,  even  by  Europeans  in  their 
own  colonies,  especially  in  the  Congo  Free  State,  and 
in  the  Portuguese  possessions."  (Quoted  from  Ely, 
Property  and  Contract  in  their  Relation  to  the  Distri- 
bution of  Wealth,  pp.  582-3.) 

Comment.  By  this  system,  slavery  is  plainly  practiced 
under  the  forms  of  law.  While  no  such  system  exists  in 
the  United  States,  there  are  similar  violations  of  liberty 
of  the  person  in  peonage  (q.v.)  and  in  the  "truck" 
system. 

Peonage 

"  The  dependence  of  contract  reaches  its  worst  phase 
in  the  so-called  '  white  slavery '  which,  we  are  told, 
also  seeks  the  use  of  contractual  forms.  Next  above 
this  we  find  ordinary  slavery  of  the  old  type.  .  .  . 
Armenia  in  1898  is  described  in  a  circular  issued  by 
missionaries.  One  missionary  says, '  I  heard  of  a  father 
in  Zeitoun  who  was  determined  to  sell  his  children  — 
Circassians  are  always  ready  to  buy  children  —  to  pre- 
vent the  whole  family  perishing.' " 

"  Peonage  contracts  in  our  South  and  some  of  the 
contracts  for  Italians  made  by  them  with  their  pa- 
drones.  .  .  .  From  the  reports  of  the  United  States 
Immigration  Commission  we  learn  that  those  laboring 
in  shoe-shining  establishments  in  this  country  are  often 
peons, '  but  as  the  elements  of  indebtedness  and  physi- 
cal compulsion  to  work  out  the  indebtedness  are  miss- 


BODILY    FREEDOM  367 

ing,  peonage  laws  cannot  apply.'  The  Greek  shoe- 
shining  industry  contains  probably  the  most  extensive 
and  the  most  serious  system  of  peonage  now  in  exist- 
ence in  this  country. 

"  Conditions  of  peonage,  second  in  seriousness,  exist 
in  the  lumber  camps  of  Maine  where  laborers  are  com- 
pelled to  remain  at  work  in  the  lumber  camps  through 
the  instrumentaUty  of  a  law  passed  in  1907.  This  law 
makes  it  a  crime  for  one  to  enter  into  an  agreement  to 
work  for  a  lumber  company,  receive  an  advance  of 
money  or  of  transportation  and  '  unreasonably  and 
with  intent  to  defraud '  fail  to  work  out  his  indebted- 
ness. .  .  .  In  1901,  cases  of  contracts  involving  the 
service  of  negroes  came  before  Judge  W.  C.  Bennett  of 
Columbia,  South  Carolina;  the  form  of  the  contract 
including  the  following: 

"  '  I  agree  at  all  times  to  be  subject  to  the  orders  and 
commands  of  said  ...  or  his  agents,  perform  all  work 
required  of  me  ...  or  his  agents  shall  have  the  right 
to  use  such  force  as  he  or  his  agents  may  deem  neces- 
sary to  compel  me  to  remain  on  his  farm  and  to  per- 
form good  and  satisfactory  services.  He  shall  have  the 
right  to  lock  me  up  for  safekeeping,  work  me  under 
the  rules  and  regulations  of  his  farm,  and  if  I  should 
leave  his  farm  or  run  away  he  shall  have  the  right  to 
offer  and  pay  a  reward  of  not  exceeding  $25.00  for  my 
capture  and  return,  together  with  the  expenses  of  same, 
which  amount  so  advanced,  together  with  any  other 
indebtedness,  I  may  owe  ...  at  the  expiration  of 
above  time,  I  agree  to  work  out  under  all  rules  and 


368  THE    PUBLIC    CONSCIENCE 

regulations  of  this  contract  at  same  wages  as  above, 
commencing  .    .    .   and  ending.   .    .    . 

"  '  The  said  .  .  .  shall  have  the  right  to  transfer  his 
interest  in  this  contract  to  any  other  party,  and  I  agree 
to  continue  work  for  said  assignee  same  as  the  original 
party  of  the  first  part.' " 

Much  has  been  written  about  peonage  in  the 
South  in  recent  years,  and  aggravated  cases  have  even 
come  before  the  courts.  In  its  worst  form,  it  means 
that  negroes  are  sentenced  to  pay  fines  for  trivial 
or  even  nominal  offenses,  and  then,  unable  to  pay 
these  fines,  they  are  sentenced  to  work  them  out 
for  long  periods  for  private  employers.  It  appears  that 
they  are  often  kept  in  debt  by  private  employers,  and 
then  are  forced  to  continue  in  a  condition  of  servitude 
to  pay  for  the  debts.  These  peons  are  kept  under 
guards  and  in  some  cases  they  have  been  shot  for  at- 
tempting to  escape. 

(Note  —  Ely  gives,  op.  cit.,  p.  717-8,  a  copy  of  an  actual 
Alabama  "  Peonage  "  Contract  with  fictitious  names  substituted  for 
the  originals;  and  in  the  rest  of  this  highly  important  and  most 
interesting  chapter  there  is  given  an  account  of  theatrical  and  base- 
ball contracts  which  show  conditions  very  similar  to  peonage.  The 
notes  to  Ely's  Chapter  X  are  full  and  illuminating.) 

Police  Control  of  the  Slave  in  South  Carolina,  p.  171, 
Henry,  H.  M.,  quotes  a  law  of  1820  forbidding  immi- 
gration of  free  persons  of  color.  There  had  been  re- 
strictions on  manumission  also  because  of  danger  from 
freed  negroes. 

"  In  1840  there  came  up  to  the  Court  of  Appeals  the 


BODILY    FREEDOM  369 

noted  Carmille  case/  A  slave  owner,  Carmille,  had  died 
leaving  a  will  which  with  reference  to  his  slaves  pro- 
vided that  they  be  set  free  if  possible.  If  they  could 
not  be  legally  emancipated  they  were  to  be  conveyed  in 
trust  to  certain  trustees  who  would  allow  them  to  hire 
their  time,  paying  only  a  nominal  sum  to  the  trustees. 
This  was  unquestionably  in  conflict  with  the  policy  of 
the  statutes  on  the  subject  of  emancipation.  Persons 
interested  in  the  estate  brought  suit  on  the  ground  that 
the  earnings  of  a  slave  belonged  to  his  owner,  in  this 
case  the  heirs.  The  court  held  that  the  will  of  the 
testator  was  not  contrary  to  the  principles  of  the  act  of 
1820  and  was  not  in  violation  of  the  state's  policy 
towards  the  negro,  and  that  the  will  ought  to  be  carried 
out." 

This  "  roused  the  sentiment  of  the  legislature  and 
caused  the  passage  of  the  sweeping  act  of  1841.  This 
act  shows  that  there  were  reasons  other  than  the  mere 
policy  of  preventing  an  increase  in  the  number  of  free 
negroes  in  the  state.  It  made  void  all  bequests,  deeds 
or  trusts  of  slaves  made  with  the  stipulation  that  they 
be  removed  from  the  state  and  set  free;  and  provided 
that  the  donee  might  be  held  responsible  to  the  heirs 
and  next  of  kin  for  an  accounting  of  the  value  of  slaves 
so  transferred  by  the  donor;  it  nullified  all  be- 
quests or  trusts  of  slaves  with  a  view^  of  holding  them 
in  nominal  slavery,  but  allowing  them  to  act  as  free 

1  2  McMulIan,  454  —  Carmille  v.  Administrators  of  Carmille 
et  al.  Statutes  at  Large,  xi,  168,  cf.  Morton  v.  Thompson,  6  Rich- 
ardson, 374  (1854). 


370  THE    PUBLIC    CONSCIENCE 

persons;  it  also  prohibited  any  devise  or  bequest  of 
property  from  being  held  in  trust  for  the  benefit  of 
slaves.  The  statute  depended  for  its  due  enforcement 
upon  the  provision  that  any  person  attempting  to  ad- 
minister a  will  and  carry  out  such  provisions  could 
be  held  financially  responsible  by  heirs  or  other 
beneficiaries." 

Mr.  Henry  shows  that  this  extreme  statute  was  never 
seriously  enforced. 

As  a  consequence  of  negro  plots  in  1820  and  there- 
abouts statutes  were  passed  requiring  every  free  negro 
over  15  years  of  age  to  have  a  guardian  who  would 
vouch  for  him.  He  could  not  carry  arms  except  with 
the  written  permission  of  his  guardian. 

"  The  legal  status  of  the  free  person  of  color.  ,  .  . 
He  was  tried  for  crime  before  the  same  kind  of  court 
as  that  provided  for  the  trial  of  slaves;  he  was  subject 
to  the  same  kind  of  penalties  —  corporal  punishment 
—  with  the  possible  addition  of  a  fine;  his  testimony 
could  not  be  accepted  in  court  against  a  white  person, 
though  a  slave  was  a  competent  witness  against  a  free 
negro;  he  had  a  full  right  to  acquire,  hold  and  trans- 
fer property;  he  might  and  often  did  own  slaves." 

See  also  pp.  181-2  of  this  same  work  for  a  judicial 
opinion  regarding  the  status  of  the  free  negro  which 
contained  the  statement  of  a  judge  of  the  Court  of 
Appeals :  "  I  have  always  thought  and  while  on  the 
circuit  ruled  that  words  of  impertinence  and  insolence, 
addressed  by  a  free  negro  to  a  white  man,  would  justify 
assault  and  battery." 


FREEDOM    OF    MOVEMENT  371 

Comment.  Here  we  have,  alongside  of  actual  cases  of 
slavery  of  a  kind  now  no  longer  existing,  a  repression  of 
those  who,  under  the  law,  had  been  freed  from  slavery, 
which  practically  amounted  to  slavery  itself.  This  was 
done  in  the  interest  of  the  police  power  of  the  state  though 
the  term  had  not  then  been  coined;  and  the  liberty  of 
those  who  nominally  were  as  free  as  the  most  free,  was 
thereby  abridged  by  the  law,  as  it  is  in  fact  though  not 
in  form  today. 


II.    INTERFERENCE   WITH    FREEDOM 
OF    MOVEMENT    (a) 

False  Imprisonment 

WONG  WING  V.  UNITED  STATES 

163  U.  S.  228 

By  the  act  of  September  13,  1888  (Sec.  13,  C.  1015, 
25  Stat.  476,  479)  it  was  provided  as  follows:  "  That 
any  Chinese  person,  or  person  of  Chinese  descent,  found 
unlawfully  in  the  United  States  or  its  Territories,  may 
be  arrested  upon  a  warrant  issued  upon  a  complaint 
under  oath,  filed  by  any  party  on  behalf  of  the  United 
States,  by  any  justice,  judge  or  commissioner  of  any 
United  States  Court,  returnable  before  any  justice, 
judge  or  commissioner  of  a  United  States  Court,  or  be- 
fore any  United  States  Court,  and  when  convicted, 
upon  a  hearing,  and  found  and  adjudged  to  be  one  not 
lawfully  entitled  to  be  or  remain  in  the  United  States, 


372  THE    PUBLIC    CONSCIENCE 

such  person  shall  be  removed  from  the  United  States 
to  the  country  whence  he  came." 

A  section  of  an  act  passed  Oct.  1,  1888,  declared 
"  That  from  and  after  the  passage  of  this  act  it  shall 
be  unlawful  for  any  Chinese  laborer  who  shall  at  any 
time  heretofore  have  been,  or  who  may  now  or  here- 
after be,  a  resident  within  the  United  States,  and  who 
shall  have  departed,  or  shall  depart  therefrom,  and  shall 
not  have  returned  before  the  passage  of  this  act,  to  re- 
turn to,  or  remain  in  the  United  States." 

The  validity  of  these  acts  was  assailed  because  they 
were  alleged  to  be  in  conflict  with  existing  treaties  be- 
tween the  United  States  and  China,  and  because  to 
deport  a  Chinaman  who  had,  under  previous  laws,  a 
right  to  return  to  the  United  States,  was  a  punishment 
which  could  not  be  inflicted  except  by  judicial  sentence. 

But  these  contentions  were  overruled  and  the  valid- 
ity of  the  legislation  sustained  by  this  court  in  the 
case  of  Chae  Chan  Ping  v.  United  States,  130  U.  S.  581. 
In  this  case  it  was  held,  in  an  elaborate  decision  by  Mr. 
Justice  Field,  that  the  act  excluding  Chinese  laborers 
from  the  United  States  was  a  constitutional  exercise 
of  legislative  power;  that,  so  far  as  it  conflicted  with 
existing  treaties  between  the  United  States  and  China, 
it  operated  to  that  extent  to  abrogate  them  as  part  of 
the  municipal  law  of  the  United  States;  and  that  a 
right  conferred  upon  a  Chinese  laborer,  by  a  certificate 
issued  in  pursuance  of  previous  laws,  to  return  to  the 
United  States,  could  be  taken  away  by  a  subsequent 
act  of  Congress. 


FREEDOM    OF    MOVEMENT  373 

Another  act  of  May  5, 1892,  still  further  strengthened 
these  positions  requiring  those  who  were  entitled  to 
remain  to  obtain  certificates  and  ordering  the  deporta- 
tion of  all  found  without  them. 

It  was  held  in  the  case  of  Fong  Yue  Ting  v.  United 
States,  149  U.  S.  698,  that  the  right  to  exclude  or  to  ex- 
pel aliens,  or  any  class  of  aliens,  absolutely  or  upon 
certain  conditions,  in  war  or  in  peace,  is  an  inherent 
and  inalienable  right  of  every  sovereign  and  indepen- 
dent nation ;  that  the  power  of  Congress  to  expel,  like 
the  power  to  exclude,  aliens  or  any  class  of  aliens  from 
the  country,  may  be  exercised  entirely  through  execu- 
tive officers. 

In  the  act  of  1892  provision  was  made  for  the  im- 
prisonment at  hard  labor  of  any  Chinese  unlawfully  re- 
maining in  the  country.  This,  it  was  maintained,  in- 
flicts an  "  infamous  punishment "  and  conflicts  with 
the  Fifth  and  Sixth  Amendments  to  the  Constitution 
which  declare  that  no  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  infamous  crime  unless  on  pre- 
sentment, etc.,  by  a  grand  jury. 

The  government  claimed  that  not  all  cases  of  pun- 
ishment at  hard  labor  were  "  infamous  punishments  " 
—  many  statutes  held  constitutional  provide  for  the 
punishment  by  imprisonment  at  hard  labor  of  vag- 
rants. Mr.  Justice  Shiras  in  his  opinion  held  that  de- 
tention or  temporary  confinement,  as  part  of  the  means 
necessary  to  give  effect  to  the  provisions  for  the  ex- 
clusion or  expulsion  of  aliens  would  be  valid.  Deten- 
tion is  a  usual  feature  of  every  case  of  arrest  on  a 


374  THE    PUBLIC    CONSCIENCE 

criminal  charge,  even  when  an  innocent  person  is 
wrongfully  accused;  but  it  is  not  imprisonment  in  a 
legal  sense.  It  was  held  by  Mr,  Justice  Gray  (in  Fong 
Yue  Ting  v.  United  States)  that  the  proceedings  to 
ascertain  whether  an  alien  may  remain  in  this  country 
are  in  no  proper  sense  a  trial  for  a  crime  or  offense, 
and  Justice  Shiran  in  the  case  here  reported  holds  that 
Congress  may  not  submit  aliens  as  such  to  infamous 
punishment  at  hard  labor  or  by  confiscating  their 
property  unless  provision  is  made  for  a  judicial  trial 
to  establish  the  guilt  of  the  accused.  This  had  not 
been  done  in  the  case  in  question.  Wong  Wing  and 
others  had  simply  been  imprisoned  by  executive  offi- 
cers and  set  to  work.  The  judgment  of  the  lower 
court  was  therefore  reversed. 

Com?7ient.  Although  this  is  given  as  a  case  of  false  im- 
prisonment, it  throws  considerable  light  also  upon  the 
practice,  not  only  of  the  United  States  but  of  all  coun- 
tries, with  reference  to  the  liberties  accorded  to  aliens. 
These  liberties  are  strictly  limited  by  treaties  in  any  case 
and  can  never  hold  against  the  manifest  interest  of  the 
country  in  question.  As  a  false  imprisonment  case  it  is 
plain  and  needs  but  a  word  of  comment.  In  so  far  as 
Wong  Wing  was  under  the  protection  of  the  United  States 
at  all,  as  a  resident  alien,  he  was  permitted  the  same 
treatment  as  a  citizen  and  false  imprisonment  could  not 
be  tolerated. 


FREEDOM    OF    MOVEMENT  375 


FOTHERINGHAM    v.    ADAMS   EXPRESS 
COMPANY 

United  States  District  Court  —  Eastern  Dist. 
MISSOURI,    1888 

(Reported  in  36  Federal  Reporter,  250.) 

Thayer,  J.  With  reference  to  the  motion  for  a  new 
trial  which  has  been  filed  in  this  case  and  duly  consid- 
ered, it  will  suffice  to  say,  that  I  entertain  no  doubt  that 
the  jury  were  warranted  in  finding  that  plaintiff  was 
unlawfully  restrained  of  his  liberty  from  about  the 
27th  or  28th  of  October  until  the  10th  of  November  fol- 
lowing ;  that  is  to  say,  for  a  period  of  about  two  weeks. 
The  testimony  in  the  case  clearly  showed  that  during 
that  period  he  was  constantly  guarded  by  detectives 
employed  by  defendant  for  that  purpose;  that  he  was 
at  no  time  free  to  come  and  go  as  he  pleased ;  that  his 
movements  were  at  all  times  subject  to  the  control 
and  direction  of  those  who  had  him  in  charge;  that  he 
was  urged  by  them  on  several  occasions  to  confess  his 
guilt,  and  make  known  his  confederates;  and  that  he 
was  subjected  to  repeated  examinations  and  cross-ex- 
aminations touching  the  robbery,  of  such  character  as 
clearly  to  imply  that  he  was  regarded  as  a  criminal, 
and  that  force  would  be  used  to  detain  him  if  he  at- 
tempted to  assert  his  liberty.  The  jury  in  all  proba- 
bility found,  as  they  were  warranted  in  doing,  that 


376  THE    PUBLIC    CONSCIENCE 

during  the  time  plaintiff  remained  in  company  with  the 
detectives,  he  was  in  fact  deprived  of  all  real  freedom  of 
action,  and  that  whatever  consent  he  gave  to  such 
restraint  was  an  enforced  consent,  and  did  not  justify 
the  detention  without  warrant." 

The  Judge  further  discussed  the  question  of  the 
damages  assessed  upon  the  Express  Company.  These 
were  greater  than  would  have  been  due  from  mere  false 
imprisonment  which  was  conceded  to  have  been  with- 
out malice.  The  damages  were  plainly  punitive  dam- 
ages, and  these  do  not  depend  wholly  upon  the  exist- 
ence of  malice.  "  Punitive  damages  may  be  awarded 
when  a  wrongful  act  is  done  wilfully,  in  a  wanton  or 
oppressive  manner,  or  even  when  it  is  done  recklessly, 
—  that  is  to  say,  in  open  disregard  of  one's  civil  obliga- 
tions and  the  right  of  others."  The  nature  of  the  right 
invaded  must  be  considered  and  the  effect  upon  social 
order  of  permitting  a  wrong-doer  to  escape  without 
substantial  punishment.  There  was  no  doubt  that  the 
jury  could  assess  substantial  damages  upon  the  wrong- 
doer in  this  case.  "  The  plaintiff  was  taken  into 
custody,  originally,  without  a  warrant,  and  was  de- 
tained without  even  the  color  of  legal  process  for  such 
an  unreasonable  period  that  the  wrong  cannot  be 
excused,  under  our  system  of  government,  by  the  plea 
that  such  arbitrary  measures  were  necessary  to  dis- 
cover the  perpetrators  of  a  great  crime." 

It  was  plain  too  that  the  captors  had  exceeded  dis- 
cretion in  their  treatment  of  the  prisoner.  But  Judge 
Thayer  found  the  damages  excessive  even  in  view  of 


FREEDOM    OF    MOVEMENT  377 

the  great  wealth  of  the  defendant.  However,  in  view 
of  the  great  expense  of  a  new  trial,  he  permitted  the 
plaintiff  to  remit  40  per  cent  of  the  damages,  $8000 
(the  verdict  thus  having  been  for  $20,000)  within  five 
days  —  otherwise  he  would  order  a  new  trial. 

Comment.  The  points  to  be  noted  here  are  that  there  was 
no  warrant  and  hence  there  was  no  due  process  of  law 
and  that,  although  mahce  was  wanting,  the  plaintiff  had 
as  a  matter  of  fact  been  unjustly  deprived  of  his  liberty. 
Intent  here  may  be  presumed  to  have  been  good  —  but 
the  act  was  bad  none  the  less. 


MOYER  V.  PEABODY 

U.  S.  Supreme  Court,  1909 

(212  U.  S.  78.) 

The  plaintiff  alleged  that  he  had  been  imprisoned 
from  March  30th,  1904,  to  June  15th.  The  imprison- 
ment, he  said,  was  without  probable  cause,  that  no 
complaint  was  alleged  against  him  and  that  he  was 
prevented  from  having  access  to  the  courts  of  the 
state. 

The  defense  was  that  there  was  insurrection  in  Colo- 
rado, and  the  defendant,  Governor  Peabody,  had  called 
out  the  militia  as  was  his  right,  and  duty.  He  ordered 
the  arrest  of  the  plaintiff  as  a  leader  of  the  outbreak. 

As  to  the  facts,  the  decision  holds  that  the  Governor 
is  final  judge  of  there  being  a  state  of  insurrection, 
and  that  he  cannot  be  subjected  to  an  action  after  he 


378  THE    PUBLIC    CONSCIENCE 

is  out  of  office  on  the  ground  that  he  had  not  reason- 
able ground  for  his  belief.  Public  danger  warrants  the 
substitution  of  executive  for  judicial  process;  and  the 
ordinary  rights  of  individuals  must  yield  to  what  the 
executive  honestly  deems  the  necessities  of  a  critical 
moment.  Therefore  he  cannot  be  held  for  false  im- 
prisonment. (Judge  Swayze  has  commented  on  this 
case :  "  The  court  might  have  added,  Silent  leges  inter 
arma.") 

Comment.  Judge  Swayze's  remark  is  most  pertinent. 
Necessity  knows  no  law  and  it  is  necessary  to  the  safety 
of  the  state  that  its  executives,  in  time  of  stress,  should 
not  be  made  liable  for  possible  mistakes  or  malice.  The 
only  redress  is  through  public  opinion.  There  is  unques- 
tioned suppression  of  liberty  here  but  it  is  not  a  case  of 
false  imprisonment  because  there  was  practically  a  con- 
dition of  martial  law  and  imprisonmnt  was  not  subject 
to  the  usual  restrictions.  This  makes  an  excellent  secu- 
rity case  if  we  consider  the  attitude  of  the  state  toward 
its  chosen  officers. 


Habeas  Corpus 

STATE  V.  ENDSLEY 

Tennessee,  1908  (?) 

(135  American  State  Reports) 

In  March,  1908,  one  Endsley  was  tried  m  the  Cir- 
cuit Court  of  Marshall  County  for  selling  intoxicating 
liquors  without  a  license.    He  was  convicted  and  sen- 


FREEDOM    OF    MOVEMENT  379 

tenced  to  six  months  in  the  county  jail  and  to  pay 
fifty  dollars  fine.  The  imprisonment  began  on  March 
24,  1908.  On  May  14,  1908,  the  sheriff,  by  an  arrange- 
ment made  with  the  county  court  and  one  Wheeler, 
released  the  prisoner  to  Wheeler  who  paid  his  fine  and 
costs,  the  prisoner  consenting  to  remain  with  Wheeler 
and  work  to  repay  the  amount  of  the  fine,  etc.  Subse- 
quently the  sheriff  concluded  that  he  had  acted  wrong- 
fully and  unlawfully  in  releasing  the  prisoner  before 
the  expiration  of  his  sentence,  so  he  re-arrested  him 
and  put  him  in  jail  there  to  remain  until  his  sentence 
should  expire.  This  arrest  was  made  without  a  war- 
rant. 

Upon  this  there  was  a  petition  sued  for  release  on 
habeas  corpus. 

The  court  declined  to  release  him  though  blaming 
the  sheriff  for  the  re-arrest  without  a  warrant.  A 
prisoner  wrongfully  released  has  no  claim  to  be  dis- 
charged because  of  a  re-arrest. 

Comment.  Whatever  the  action  of  the  sheriff,  the  liberty 
of  the  prisoner  was  not  infringed  —  for  he  had  been  de- 
prived of  it  by  due  process  of  law  and  nothing  in  his  own 
act  or  that  of  a  proper  court  had  changed  his  status. 

Passports  and  Registration  of  Strangers 

The  Chinese  exclusion  act  of  1892  requires  of 
Chinese  laborers  certificates  of  residence  without  which 
their  being  in  the  country  is  deemed  unlawful. 

"  It  was  said  in  the  Passenger  Cases  (7  How.  283, 


380  THE    PUBLIC    CONSCIENCE 

404)  that  every  state  has  an  unquestioned  right  to  re- 
quire the  register  of  the  names  of  the  persons  who 
come  within  it  to  reside  temporarily  or  permanently." 
Freund,  pp.  40-41. 

Permits  de  sejour  are  required  in  France  and  in 
Switzerland;  similar  permissions  are  even  more  closely 
supervised  in  Germany  and  Russia.  The  countries  of 
Europe  vary  greatly  in  the  strictness  of  their  require- 
ments, England  being  probably  the  most  lax  and 
Germany  and  Russia  the  most  severe ;  but  there  is  no 
question  raised  regarding  the  right  of  the  government 
to  make  these  requirements. 

Freedom  of  Movement 

Virginia  Code,  Sec.  1294-d,  provides  that  there  shall 
be  separate  quarters  for  white  and  colored  persons  on 
steam  and  electric  roads.  There  shall  be  no  discrimi- 
nation in  quality  of  accommodations  and  they  must  be 
equally  well  heated  in  cold  weather ;  but  the  amount  of 
space  reserved  for  either  race  is  not  specified  and  is 
within  the  discretion  of  the  company.  It  is  further 
provided  that  passengers  must  obey  the  orders  of  the 
conductors  of  cars,  who  are  special  policemen,  on  pen- 
alty of  being  ejected  from  the  cars  without  redress 
even  though  they  should  have  paid  their  fares. 

These  provisions  do  not  apply  to  employees  or  to 
nurses  or  to  officers  in  charge  of  prisoners  or  lunatics. 

The  coaches  on  trains  are  to  be  marked  plainly  with 
signs  indicating  whether  they  are  for  white  persons  or 
for  colored. 


FREEDOM    OF    MOVEMENT  381 

The  same  provision  is  made  for  separating  the  races 
on  steamships  and  in  waiting  rooms. 

Comment.  This  is  kept  from  being,  or  appeariLg  to  be, 
class  legislation  by  making  it  apply  equally  to  both  races. 
It  is  as  much  of  an  offense  for  a  white  person  to  intrude 
into  colored  quarters  as  for  the  colored  people  to  intrude 
into  white  quarters. 


Right  of  Assembly 

COMMONWEALTH  v.  GIBNEY 

Supreme  Judicial  Court  of  Massachusetts,  1861 

(Reported  2  Allen,  150.    Beale,  65,  3d  ed.) 

Defendants  were  indicted,  five  in  number,  with 
divers  other  persons  because  on  December  31st,  1860, 
they  assembled  "  with  force  and  arms,  to  wit,  with 
clubs,  staves,  stones  and  other  dangerous  and  offensive 
weapons "  at  Union  Hall,  the  property  of  one  Foy, 
at  night,  and  there  made  a  great  disturbance,  breaking 
windows  and  making  much  noise  for  about  an  hour. 

They  were  adjudged  guily  in  the  Superior  Court  but 
the  case  was  taken  up  to  the  Supreme  Court  and  the 
decision  was  reversed. 

Dewey,  J.,  gave  the  various  authorities  on  riots  and 
unlawful  assemblies : 

"  To  maintain  an  indictment  for  riot,  the  prosecutor 
must  prove  1.  The  assembling,  2.  The  intent  namely 
'  that  they  so  assembled  together  with  intent  to  execute 


382  THE    PUBLIC    CONSCIENCE 

some  enterprise  of  a  private  nature  and  also  mutually 
to  assist  one  another  against  any  person  who  should 
oppose  them  in  doing  so,  —  a  riot  requires  three  or 
more  persons  assembling  together."  In  Deacon's  Crim. 
Law  a  riot  is  said  to  be  "  a  tumultuous  meeting  of  three 
or  more  persons  who  actually  do  an  unlawful  act  of 
violence,  either  with  or  without  common  cause  or 
quarrel,"  "  or  even  do  a  lawful  act,  as  removing  a 
nuisance  in  a  violent  and  tumultuous  manner."  There 
must  be  unlawful  assembly  for  a  riot  though  the  assem- 
bly may  have  been  lawful  at  first  and  afterwards  be- 
come unlawful  by  its  acts. 

Comment.  In  the  present  case,  there  were  no  proper  alle- 
gations regarding  the  assembly  of  three  or  more  persons. 
In  other  words,  this  plain  and  unmistakable  riot  was  not 
punished  because  the  form  of  indictment  was  wrong. 
This  is  an  excellent  example,  perhaps,  of  the  security 
which  the  general  public  enjoys  from  the  forms  of  the  law. 
It  is  contended  by  many  that  it  is  far  better  to  have  an 
occasional  miscarriage  of  justice,  failure  to  convict  obvi- 
ous offenders,  than  to  have  innocent  people  injured  by 
breaking  down  that  defense  which  comes  from  the  neces- 
sity of  using  the  proper  form  of  indictment  and  the  right 
plea. 

Mere  assembling  is  not  counter  to  the  law  —  but  it  is 
obvious  that  any  assembling  is  likely  to  be  counted  riot- 
ous if  done  by  the  malcontents  of  any  cormnunity,  what- 
ever their  purpose,  base  or  noble. 


FREEDOM    OF    ACTION  383 


III.   INTERFERENCE  WITH   FREEDOM 
OF  ACTION.  —  POLICE  REGULATIONS. 

Freedom  of  Action 

New  York  Times,  July  19,  1916. 

The  Court  of  Appeals  has  decided  that  a  large  sign, 
erected  by  the  O.  J.  Gude  Company,  on  top  of  a  build- 
ing at  47th  Street  and  Seventh  Avenue,  New  York 
City,  must  be  taken  down  or  reduced  in  size.  The  rul- 
ing upholds  the  city  building  ordinance  restricting  the 
height  of  advertising  signs  to  75  feet  above  the  roofs 
on  which  they  are  built  even  though  the  permits  were 
issued  before  the  new  ordinance  was  passed  in  1914. 

Violation  of  Traffic  Regulations 

New  York  Times,  July,  1916. 

A  new  order  in  the  enforcement  of  traffic  regulations 
is  indicated  in  the  first  ofiicial  report  of  New  York's 
Traffic  Court.  Before  the  court  was  established  one- 
fifth  of  the  fines  for  traffic  violations  were  suspended, 
it  is  estimated,  but  none  have  been  since  the  new  court 
took  over  the  hearing  of  all  cases  in  Manhattan.  No 
excuses  have  been  accepted,  the  letter  of  the  law  being 
enforced  in  every  case  where  violation  was  proved. 

The  report  covers  thirteen  court  days.  The  number 
of  arraignments  was  827.  The  total  of  fines  paid  into 
the  court  was  $8,740,  and  $2,563  was  paid  to  the  De- 


384  THE    PUBLIC    CONSCIENCE 

partment  of  Correction  after  commitment,  making  a 
total  of  $11,303. 

Speed  violations  hold  a  strong  first  in  the  list,  there 
being  300  of  these,  278  first  offenders,  19  second  and  3 
third.  In  violations  of  the  corporation  ordinances, 
overtaking  a  street  car  and  passing  within  eight  feet 
of  it  while  it  is  receiving  or  discharging  passengers, 
was  second,  with  forty-eight  convictions.  Reckless 
driving  came  third,  with  thirty-three  cases.  In  viola- 
tions of  the  State  highway  law,  the  largest  number 
was  for  having  an  improper  number  plate  —  sixty-five. 
Twenty  chauffeurs  were  convicted  of  operating  cars 
without  licenses;  three  persons  for  driving  cars  while 
intoxicated,  and  six  for  failing  to  stop  after  an  accident 
—  a  felony.  There  were  twenty-three  violations  of 
the  sanitary  code  by  smoking  motor  vehicles. 

One  hundred  and  twenty-nine  persons  were  com- 
mitted in  default  of  payment  of  fines,  and  sixty  of 
these  are  serving  sentences  for  non-payment.  Two 
chauffeurs'  licenses  were  revoked,  and  one  owner's 
registration  number  was  suspended.  This  was  done 
under  the  city  ordinance  which  provides  that  when  it 
is  established  that  the  owner  had  ordered  the  chauffeur 
to  speed  the  car,  such  action  may  be  taken.  Of  the 
$8,740  fines  paid  to  the  Clerk  of  the  Court  all  were  for 
violations  of  the  corporation  ordinances  except  $607 
credited  to  highway  law  and  $93  to  the  sanitary  code. 

Rowland  J.  Sheridan,  Clerk  of  the  Court,  said  that 
horse-drawn  vehicle  violations  had  not  been  segregated 
from  motor  vehicle  violations,  and  estimated  that  the 


FREEDOM    OF    ACTION  385 

ratio  of  the  former  to  the  latter  was  10  per  cent. 
Magistrate  Frederick  B.  House,  who  presides  over  the 
court,  said  regarding  his  experience  in  the  court  thus 
far: 

"  Conditions  are  somewhat  better  in  the  streets  so 
far  as  reports  come  in  from  the  poUce;  that  is,  as  to 
reckless  driving  and  the  eight-foot  regulation  as  to 
street  cars,  but  there  does  not  seem  to  be  any  let-up  in 
speeding.  I  think  we  shall  have  much  trouble  with  this 
situation  until  there  is  a  law  requiring  the  licensing  of 
owners,  just  as  chauffeurs  are  licensed  now,  after  an 
examination  as  to  qualifications,  with  the  same  power 
to  revoke  the  owner's  license  for  cause.  I  think  also 
the  local  authorities  should  have  the  power  to  impound 
a  car  involved  in  a  violation,  from  one  to  thirty  days, 
as  is  done  in  some  of  the  European  cities." 

All  fines  for  violations  of  the  corporation  ordinance 
are  paid  to  the  city,  and  the  city  keeps  them ;  fines  for 
all  violations  of  the  State  highway  law  go  to  the  State 
Treasurer,  the  city  receiving  a  part  of  these  back. 

Comment.  This  newspaper  article  is  quoted  to  show  the 
variety  and  drastic  nature  of  licenses  and  penalties  under 
ordinary  municipal  police  regulations.  The  interference 
with  individual  freedom  is  always  in  the  interest  of  the 
group. 


386  THE    PUBLIC    CONSCIENCE 

Police  Power  —  Licenses 

MUNN   V.   ILLINOIS 

Supreme  Court  of  the  United  States,  1876 

(94  U.  S.  113.) 

An  article  of  the  Constitution  of  the  State  of  Illinois 
related  to  the  establishment  and  regulation  of  public 
warehouses  for  grain,  making  all  warehouses  where 
grain  or  other  property  was  stored  for  compensation 
public;  and  providing  equal  access  of  all  comers,  full 
publicity,  etc.,  etc. 

Munn  &  Scott  of  Chicago  were  charged,  on  June  29, 
1872,  with  having  failed  to  take  out  a  license  as  public 
warehousemen  and  with  having  failed  to  give  bond  as 
required,  although  they  were  conducting  such  a  busi- 
ness. Moreover  they  charged  rates  which  were  in  vio- 
lation of  an  Act  of  April  25,  1871.  They  were  found 
guilty  and  fined  $100.  The  judgment  of  the  Criminal 
Court  of  Cook  County  was  affirmed  by  the  Supreme 
Court  of  the  State;  and  thence  the  case  was  carried  to 
the  Supreme  Court  of  the  United  States  by  the  defend- 
ants who  alleged  unconstitutionality  of  the  act  and 
State  Constitution. 

Chiej  Justice  Waite  delivered  the  opinion  which  cov- 
ered the  following  points : 

Under  the  powers  inherent  in  any  sovereignty,  a 
government  may  regulate  the  conduct  of  its  citizens 


FREEDOM    OF    ACTION  387 

toward  each  other,  and,  when  necessary  for  the  pubUc 
good,  the  manner  in  which  each  shall  use  his  own 
property.  In  the  exercise  of  these  powers  it  has  been 
customary  from  time  immemorial  to  regulate  ferries, 
common  carriers,  hackmen,  bakers,  millers,  wharfingers, 
etc. —  and  to  regulate  charges. 

This  is  not  to  deprive  an  owner  of  his  property  with- 
out due  process  of  law.  Statutes  regulating  property 
and  its  use  may  so  deprive,  but  they  do  not  necessarily. 
The  Fourteenth  Amendment  does  not  change  the  law 
in  this  particular;  it  simply  prevents  the  states  from 
doing  that  which  will  operate  as  such  deprivation. 

When  the  owner  of  property  devotes  it  to  a  use  in 
which  the  public  has  an  interest,  he  in  effect  grants 
to  the  public  an  interest  in  such  use,  and  must,  to  the 
extent  of  that  interest,  submit  to  be  controlled  by  the 
public,  for  the  common  good,  so  long  as  he  maintains 
the  use.  He  may  withdraw  his  grant  by  discontinuing 
the  use. 

The  law  respecting  rights  of  property  and  reasonable 
compensation  for  its  use,  may  be  changed  by  the  legis- 
lature. The  great  office  of  statutes  is  to  remedy  defects 
in  the  common  law  as  they  are  developed,  and  to  adapt 
it  to  the  changes  of  time  and  circumstances. 

There  is  no  violation  of  the  Constitution  in  the  act 
in   question. 

The  judgment  of  the  lower  court  was  affirmed. 

There  may  be  added  the  opinion  of  Lord  Hale,  as 
follows : 

"  A  man^  for  his  own  private  advantage,  may,  in  a 


388  THE    PUBLIC    CONSCIENCE 

port  or  town,  set  up  a  wharf  or  crane,  and  may  take 
what  rates  he  and  his  customers  can  agree  for  cranage, 
wharfage,  housellage,  pesage ;  for  he  doth  no  more  than 
is  lawful  for  any  man  to  do,  viz ;  makes  the  most  of  his 
own.  ...  If  the  King  or  subject  have  a  public  wharf, 
unto  which  all  persons  that  come  to  that  port  must 
come  and  unlade  or  lade  their  goods  as  for  the  purpose, 
because  they  are  the  wharfs  only  licensed  by  the  Queen, 
...  or  because  there  is  no  other  wharf  in  that  port, 
as  it  may  fall  out  where  a  port  is  newly  erected ;  in  that 
case  there  cannot  be  taken  arbitrary  and  excessive 
duties  for  cranage,  wharfage,  pesage,  etc.,  neither  can 
they  be  enhanced  to  an  immoderate  rate ;  but  the  duties 
must  be  reasonable  and  moderate,  though  settled  by 
the  King's  license  or  charter.  For  now  the  wharf  and 
crane  and  other  conveniences  are  affected  with  a  public 
interest,  and  they  cease  to  be  juris  privati  only;  as  if 
a  man  set  out  a  street  in  new  building,  on  his  own  land, 
it  is  now  no  longer  bare  private  interest,  but  is  affected 
by  a  public  interest." 

Comment.  The  principle  of  the  police  power  of  the  state 
is  here  stated  clearly  and  categorically,  and  also  the  prin- 
ciple of  the  public's  interest  in  private  property.  Emi- 
nent domain  is  asserted  by  implication. 


FREEDOM    OF    ACTION  389 

Freedom  of  Action  —  License  —  Police 
Regulations 

(A  decision  of  the  Appellate  Division  of  the  Supreme  Court.) 

New  York  Times,  July  23,  1916. 

An  agent  of  the  Northwestern  Mutual  Life  Insur- 
ance Company  sued  the  company  for  $200,000  for 
breach  of  contract  in  that  it  had  employed  him  for  a 
term  of  years  from  January  11th,  1907,  to  December 
31st,  1916,  but  had  discharged  him  on  July  7th,  1914. 

The  company  declared  that  the  agent  was  discharged 
because  his  license  had  been  revoked  by  the  Insurance 
Department  of  the  state.  Without  such  a  license,  no 
agent  can  conduct  an  insurance  business.  The  agent 
declared  that  the  revocation  of  his  license  was  brought 
about  by  the  general  agent  of  the  company  for  the  pur- 
pose of  making  the  agreement  void.  The  claim  that 
the  company  had  acted  in  this  fashion  was  not  made 
in  the  formal  complaint.  For  this  reason  and  for 
others,  the  court  held  that,  the  company  not  being  a 
party  to  the  contract  between  the  agent  and  the  State 
Insurance  Department,  it  was  made  impossible  for  the 
insurance  company  to  keep  its  contract. 

"  It  is  like  the  case  of  People  v.  Globe  Mutual  Life 
Insurance  Co7npany  (91  New  York  175)  where  the  ap- 
pointment of  a  receiver  made  the  agent's  contract  im- 
possible of  performance  and  where  the  court  said: 
'The  State,  by  the  injunction  order  operating  alike 
upon  the  company  and  its  agents,  paralyzed  the  action 


390  THE    PUBLIC    CONSCIENCE 

of  both  contracting  parties  so  that  neither  could  per- 
form by  putting  the  other  in  the  wrong.  Thereupon 
the  company  could  not  refuse  and  did  not  refuse!  '  " 

Another  opinion  cited  read :  "  What  happened  was 
a  dissolution  of  the  contract  by  the  sovereign  power  of 
the  State  rendering  performance  on  either  side  im- 
possible. And  this  result  was  within  the  contemplation 
of  the  parties,  and  must  be  deemed  an  unexpressed 
condition  of  their  agreement."  (Verdict  for  the 
Company.) 

Comment.  It  might  well  have  been  that  the  Company 
acted  in  collusion  with  the  State  Insurance  authorities 
to  have  the  agent's  license  revoked  so  as  to  escape  its 
obligations  to  him  under  contract.  It  is  not  asserted 
here  nor  denied.  It  is  simply  a  possibility;  and  if  it  were 
true  would  call  for  reform  and  various  safeguards.  But 
this  would  not  invalidate  the  principle  that  an  annul- 
ment of  power  to  act,  by  the  State,  relieves  all  under  its 
authority  of  responsibility  to  act.  It  is  an  admirable 
illustration  of  eminent  domain  in  one  of  its  less  usual 
aspects,  as  set  forth  in  the  conclusion  of  this  classi- 
fication. 


Equal  Protection  —  Liquor  License 
GIOZZA  V.  TIERNAN 

Supreme  Court  of  the  United  States,  1892 
(148  U.  S.  657.) 

Francois  Giozza  claimed  that  he  was  denied  the  equal 
protection  of  the  laws  and  that  he  was  deprived  of  his 


FREEDOM    OF    ACTION  391 

property  without  due  process  of  law,  in  that  he  was 
fined  $450  for  selling  liquor  without  a  license,  as 
required  by  the  laws  of  Texas.  He  was  seized  and  held 
on  his  failure  to  pay  the  fine  but  applied  for  and  ob- 
tained a  writ  of  habeas  corpus.  In  the  petition  for  this 
writ  he  sets  forth  his  complaint. 

It  appears  that,  under  the  laws  of  Texas,  no  person 
is  permitted  to  obtain  a  license  to  pursue  the  occupa- 
tion of  selling  liquor  until  he  has  given  bond  in  the  sum 
of  $5,000  payable  to  the  state,  and  containing  the  con- 
dition that  he  will  not  sell  liquor  to  any  one  whose 
wife,  mother,  daughter,  or  sister  has  notified  him 
through  the  sheriff  or  other  proper  ofiicer,  not  to  sell. 
Such  wife,  mother,  etc.,  is  entitled  to  recover  $500 
damages  for  an  infraction  of  this  condition. 

The  petitioner  also  alleged  that  he  was  unjustly  re- 
quired to  pay  an  occupation  tax  for  twelve  months  in 
advance,  whereas,  in  other  businesses,  this  tax  was  paid 
quarterly. 

The  laws  of  the  state  had  been  pronounced  valid 
and  constitutional. 

The  annual  tax  for  selling  liquor  in  amounts  less 
than  a  quart,  was  $300,  the  occupation  tax  $150. 
Giozza  had  paid  neither. 

Chief  Justice  Fuller  in  his  opinion  said,  inter  alia, 
"  Irrespective  of  the  operation  of  the  federal  Constitu- 
tion and  restrictions  asserted  to  be  inherent  in  the 
nature  of  American  institutions,  the  general  rule  is  that 
there  are  no  limitations  upon  the  legislative  power  of 
the  legislature  of  a  State,  except  those  imposed  by  its 


392  THE    PUBLIC    CONSCIENCE 

written  constitution."  There  is  nothing  in  the  Consti- 
tution of  Texas  restricting  the  power  of  the  legislature 
to  make  any  liquor  laws  it  sees  fit,  but  it  is  contended 
that  the  act  conflicts  with  the  provisions  of  the  Four- 
teenth Amendment,  that  "  no  states  shall  make  or  en- 
force any  law  which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States;  nor  shall 
any  states  deprive  any  person  of  life,  liberty  or  prop- 
erty without  due  process  of  law,  nor  deny  to  any  per- 
son within  its  jurisdiction  the  equal  protection  of  the 
laws." 

"  The  privileges  and  immunities  of  citizens  of  the 
United  States  are  privileges  and  immunities  arising  out 
of  the  nature  and  essential  character  of  the  national 
government,  and  granted  or  secured  by  the  Constitu- 
tion of  the  United  States,  and  the  right  to  sell  intoxi- 
cating liquors  is  not  one  of  the  rights  growing  out  of 
that  citizenship. 

"  The  amendment  does  not  take  from  the  States 
those  powers  of  police  that  were  reserved  at  the  time 
the  original  Constitution  was  adopted  ...  it  was  not 
designed  to  interfere  with  the  power  of  the  State  to 
protect  the  lives,  liberty  and  property  of  its  citizens, 
and  to  promote  their  health,  morals,  education  and 
good  order.  .  .  .  Nor,  in  respect  of  taxation  was  the 
amendment  intended  to  compel  the  State  to  adopt  an 
iron  rule  of  equality.  ...  It  is  enough  if  there  is  no 
discrimination  in  favor  of  one  as  against  another  of  the 
same  class  (cases  cited).  And  due  process  of  law 
within  the  meaning  of  the  amendment  is  secured  if 


FREEDOM    OF    ACTION  393 

the  laws  operate  on  all  alike,  and  do  not  subject  the 
individual  to  an  arbitrary  exercise  of  the  powers  of 
government." 
The  decree  of  the  Circuit  Court  was  affirmed. 

Comment.  Chief  Justice  Fuller  asserts  for  the  individual 
states  the  ancient  principle  of  sovereignty,  —  "  the  King 
can  do  no  wrong  "  but  the  Fourteenth  Amendment  is  a 
plain  countervailing  principle.  However  the  declaration 
that  "  the  right  to  sell  intoxicating  liquors  is  not  a  right 
growing  out  of  citizenship  "  in  the  United  States  settles 
this  particular  problem.  The  police  power  of  the  individ- 
ual states  is  as  imperative  as  that  of  the  United  States 
so  long  as  there  is  no  class  discrimination  and  no  dis- 
crimination against  an  individual. 


Police  Regulations  (2) 
Labor  Unions 

UNDERWOOD  v.  TEXAS  PACIFIC  RAILWAY  CO. 

CouKT  OF  Civic  Appeals  of  Texas,  1915 

(178  Southwestern  Reporter  38.     189  Bui.  Lab.  St.,  156.) 

J.  A.  Underwood  and  others  sued  for  a  writ  of  in- 
junction against  the  defendants  to  obtain  relief  from 
the  continued  carrying  out  of  a  contract  of  agreement 
between  the  railway  companies  and  the  Brotherhood  of 
Railway  Trainmen,  and  for  a  decree  declaring  the 
agreement  to  be  void.  The  plaintiffs  declared  that  they 
were  proficient  railway  switchmen,  and  were  industri- 


394  THE    PUBLIC    CONSCIENCE 

ous,  etc.,  and  had  been  unable  to  secure  work  when 
they  applied  because  they  were  not  members  of  the 
brotherhood.  As  to  reasons  assigned  for  illegality  of 
the  contract  the  court's  opinion,  by  Judge  Rainey, 
says: 

"  Complainants  further  charge  that  said  purported 
contract  between  the  Brotherhood  of  Railway  Train- 
men and  defendant  railroads  is  illegal  and  void,  as  be- 
ing without  consideration,  against  public  policy,  dis- 
criminatory, preventive  of  competition  and  of  the 
freedom  of  contract,  creative  of  a  monopoly  of  labor, 
destructive  of  the  liberty  and  property  of  the  complain- 
ants, and  creative  of  a  combination  in  the  interest  of 
monopoly  to  prevent  the  employment,  as  well  as  to 
compel  the  discharge  of  competent  men  who  were  will- 
ing to  work,  but  who  were  not  members  of  the  Brother- 
hood of  Railway  Trainmen,  that  its  continued  enforce- 
ment by  the  railroads  and  the  Brotherhood  of  Railway 
Trainmen  will  work  irreparable  injury  to  complainants, 
and  that  they  have  no  adequate  remedy  at  law." 

The  railway  companies  admitted  an  agreement  by 
them  with  the  brotherhood,  which  provided  that  they 
would  give  preference  to  members  of  the  brotherhood 
to  the  extent  of  85  per  cent  in  the  case  of  one  company 
and  75  per  cent  in  the  the  other  case,  making  no  change 
in  the  men  employed  at  the  time  of  the  contract,  but 
accomplishing  the  result  in  the  hiring  of  men  as  vacan- 
cies occurred.  They  denied  any  agreement  or  under- 
standing between  themselves  with  reference  to  the 
matter. 


FREEDOM    OF    ACTION  395 

The  Brotherhood  of  Railway  Trainmen  submitted 
that  it  represented  nine-tenths  or  more  of  the  work- 
men concerned  and  that  its  contracts  with  the  several 
defendants  herein,  wherein  it  has  sought  to  provide  for 
a  percentage  employment  basis  of  its  members,  is  not 
only  not  discriminatory  as  to  non-members  of  its  order, 
but,  on  the  other  hand,  is  exceedingly  fair  and  just,  and, 
if  there  be  discrimination  in  said  percentage,  it  is 
against  the  defendant  rather  than  those  who  are  not  its 
meinbers. 

The  trial  court  refused  to  issue  the  injunction.  The 
court  of  appeals  afiSrmed  the  judgment  in  favor  of  the 
defendants.  Judge  Rainey  stating  the  findings  of  fact 
and  conclusions  of  law.  After  stating  the  terms  of 
the  contract,  he  said : 

"  There  is  nothing  to  show  that  there  was  any  con- 
spiracy and  combination  between  the  appellees  which 
contravenes  any  law  of  this  State  or  of  the  United 
States.  There  is  nothing  in  the  contract  which  inter- 
feres with  the  interests  of  society  nor  interferes  unlaw- 
fully with  the  liberty  of  appellants  to  pursue  their 
chosen  avocations  consistent  with  the  rights  of  others. 
The  law  gives  to  the  railroad  companies  the  right  of 
contract  and  the  same  right  to  all  other  legal  organiza- 
tions so  long  as  such  contracts  they  make  are  not  viola- 
tive of  law.  Our  statutes  authorize  laborers  to  associate 
themselves  together,  form  trade-unions,  etc.,  for  their 
protection,  in  their  respective  callings.  (Penal  Code, 
art.  1477.)  Article  1479  provides  that  the  antitrust  law 
shall  not  interfere  with  the  terms  and  conditions  of 


396  THE   PUBLIC    CONSCIENCE 

contracts  relating  to  private  contracts  as  to  service  of 
employment  between  employer  and  employee.  The 
contract  between  the  railway  companies  and  the 
Brotherhood  of  Railway  Trainmen  was  legal,  it 
being  for  the  benefit  of  the  individual  members  of 
that  order  in  securing  work  and  for  the  railways  in 
securing  skilled  and  efficient  workmen  to  protect  their 
interest. 

"  The  evidence  does  not  show  that  they  would  have 
been  employed  by  the  railroads  had  there  been  no  con- 
tract with  the  Brotherhood  of  Railway  Trainmen. 
Appellants  merely  show  that  the  railways  gave  as  an 
excuse  for  not  giving  them  employment  that  they  were 
not  members  of  the  Brotherhood  of  Railway  Trainmen. 
This  the  railways  had  the  right  to  do.  They  were  free 
to  employ  whom  they  pleased,  and  this  right  cannot 
be  questioned,  not  being  connected  with  any  con- 
spiracy or  combination  against  any  individual  or  organ- 
ization to  prevent  employment. 

"  The  decisions  of  this  State  and  the  United  States, 
we  think,  make  clear  the  distinction  between  the  two 
classes  of  contracts  in  regard  to  labor,  where  such  are 
legal  and  those  affected  by  conspiracy,  etc.  There  is 
reason  in  contracting  with  the  Brotherhood  of  Railway 
Trainmen,  for  its  membership  greatly  exceeded  the 
membership  of  any  other  particular  union,  which  was 
a  guaranty  of  keeping  a  full  working  force.  But  the 
contract  is  not  exclusive,  and  provides  for  only  a  cer- 
tain per  cent  of  Brotherhood  of  Railway  Trainmen, 
and  the  evidence  shows  appellees  have  a  larger  per  cent 


FREEDOM    OF    ACTION  397 

of  other  classes  employed  than  of  the  Brotherhood  of 
Railway  Trainmen  in  proportion  to  membership. 

"  Where  Congress  and  several  of  the  States  have  en- 
acted laws  attempting  to  limit  the  power  of  corpo- 
rations and  individuals  in  regard  to  making  contracts 
for  labor  as  they  see  fit  such  laws  have  been  held 
unconstitutional  by  the  appellate  courts."  [Coppage 
V.  Kansas,  236  U.  S.  135  Sup.  Ct.  240  (Bui.  No.  169, 
p.  147;  other  cases  cited).] 

A  quotation  of  some  length  is  made  from  the  Cop- 
page  case,  and  the  opinion  concludes: 

"  The  contract  here  is  not  against  public  property, 
as  it  in  no  way  affects  the  real  needs  of  the  people  in 
their  health,  safety,  comfort,  or  convenience." 

Comment.  Here  there  is  a  conflict  between  cases  of  liberty 
of  contract  and  it  is  made  clear  that  the  principle  of  de- 
cision is  practically  the  same  as  in  the  English  case  of 
Mogul  Steamship  Company  (q.v.)  viz.:  if  the  pubhc 
interest  is  at  stake,  Hberty  of  contract,  of  any  sort  what- 
soever, must  go.  Facts  alone  are  important  here.  The 
principle  is  established. 

COPPAGE  V.  KANSAS 
United  States 

(35  Supreme  Court  Reporter,  240.) 

This  decision  declared  unconstitutional  a  state  stat- 
ute which  prevented  an  employer  from  forcing  an  em- 
ployee to  agree  not  to  join  a  trade  union  during  his 
term  of  employment. 


398  THE    PUBLIC    CONSCIENCE 

The  facts  of  the  case  are  briefly  as  follows:  In  1903 
a  Kansas  statute  was  passed  makmg  it  a  misdemeanor 
for  any  employer  to  require  a  worker  to  agree  not  to 
join  a  labor  union  or  remain  a  member  of  such,  as  a 
condition  of  obtaining  or  retaining  a  position.  On 
July  1,  1911,  T.  B.  Coppage,  superintendent  of  the  St. 
Louis  and  San  Francisco  Railway  Company  at  Fort 
Scott,  Kansas,  requested  A.  B.  Hedges,  a  switchman, 
to  sign  an  agreement  that  he  would  withdraw  from 
the  Switchmen's  Union  of  America  and  remain  out- 
side of  its  ranks  so  long  as  he  was  employed  by  the 
Company.  Hedges  refused  to  comply  and  was  dis- 
charged. Legal  proceedings  followed.  The  case  finally 
reached  the  Kansas  Supreme  Court,  where  the  consti- 
tutionality of  the  statute  was  upheld.  On  January 
25th,  1915,  this  judgment  was  reversed  by  the  Supreme 
Court  of  the  United  States.  Justice  Holmes  dissented 
on  the  same  grounds  as  in  the  Adair  Case  of  1908  (q.v.) 
and  Justice  Day  issued  a  separate  dissenting  opinion, 
concurred  in  by  Justice  Hughes. 

Justice  Pitney,  for  the  majority  opinion,  contended 
that  the  statute  in  question  constituted  an  interference 
with  liberty  of  contract  guaranteed  by  the  Fourteenth 
Amendment,  and  thus  must  be  deemed  to  be  arbitrary, 
"  unless  it  be  supported  as  a  reasonable  exercise  of  the 
police  power  of  the  state."  A  statute,  he  declared,  may 
be  sustained  as  a  legitimate  exercise  of  this  police  power 
if  it  is  passed  to  prevent  coercion  and  to  promote  the 
public  health,  morals  or  general  welfare  of  the  people. 
He  found  that  there  was  no  such  condition  here 
existing. 


FREEDOM    OF    ACTION  399 

Justice  Holmes  held  that  the  statute,  far  from  inter- 
fering with  freedom  of  contract,  might  be  looked  upon 
as  actually  preparing  the  way  for  such  freedom.  "  In 
present  conditions  a  workman  may  not  unnaturally 
believe  that  only  by  belonging  to  a  union  can  he  secure 
a  contract  that  shall  be  fair  to  him.  If  that  belief, 
whether  right  or  wrong,  may  be  held  by  a  reasonable 
man,  it  seems  to  me  that  it  may  be  enforced  by  law 
in  order  to  establish  the  equality  of  position  between 
the  parties  in  which  liberty  of  contract  begins." 

Justice  Day  declared  that  the  right  of  contract  was 
not  absolute.  Since  this  statute  simply  protected  the 
legal  right  of  an  employee  to  join  a  union  its  passage 
could  not  be  considered  an  abuse  of  legislative  power. 
Coercion  is  present  when  an  employer  forces  an  em- 
ployee to  sign  an  agreement  or  lose  his  job.  "  In  view 
of  the  relative  position  of  employer  and  employed,  who 
is  to  deny  that  the  stipulation  here  insisted  upon  and 
forbidden  by  the  law  is  essentially  coercive?  " 

Comment.  It  is  important  to  notice  two  points,  viz.:  — 
That,  both  the  decision  of  the  court  and  the  dissenting 
opinions  lay  stress  upon  freedom  of  contract,  and  2. 
That  by  this  decision  the  freedom  of  contract  is  actually 
limited. 


400  THE    PUBLIC    CONSCIENCE 

Police  Power  in  General 

STATE  V.  J.  J.  NEWMAN  LUMBER  CO. 

Supreme  Court  of  Mississippi,  1912 

(59  Southern  Reporter,  923.    112  Bui.  Lab.  St.,  102.) 

The  defendant  was  a  corporation  operating  a  saw 
and  planing  mill  plant  and  a  logging  railroad  and  also 
shops  for  the  repair  of  the  machinery  used.  They  had 
worked  their  men  in  excess  of  10  hours  per  day,  which 
was  in  violation  of  the  statute  except  for  emergency, 
or  cases  of  public  necessity.  The  facts  were  not  dis- 
puted. They  challenged  the  constitutionality  of  the 
law  in  the  Supreme  Court  of  Mississippi,  but  the  law 
was  sustained  at  all  points  by  an  undivided  court. 
Judge  Reed  delivered  the  opinion,  a  part  of  which 
follows: 

"  There  has  been  already  in  this  country  much  dis- 
cussion of  the  laws,  like  the  statute  now  before  us, 
commonly  known  as  '  labor  laws.'  It  seems  to  be 
settled  that  the  legislatures  of  the  States  have  the 
power  to  enact  proper  laws  to  regulate  and  provide  for 
the  '  safety,  the  health,  the  morals,  and  the  general 
welfare  of  the  public' 

"  It  is  incumbent  upon  the  legislature  to  enact  all 
laws  necessary  for  regulating  the  conduct  of  the 
people  and  the  proper  use  of  their  property.  It  is  often 
true  that  persons  will  deem  their  liberties  abridged,  or 


FREEDOM    OF    ACTION  401 

the  unlimited  enjoyment  of  their  property  interfered 
with.  Since  the  beginning  of  government  this  has  been 
so.  It  will  continue  so  long  as  persons  decide  from  a 
selfish  standpoint,  and  not  from  a  consideration  of  the 
welfare  of  all  citizens.  It  is  the  duty  of  the  legislature 
to  consider  the  interests  of  all  —  what  is  best  for  society 
generally.  As  seen  in  the  foregoing  quotation  from  our 
State  constitution,  it  is  enjoined  upon  the  lawmakers 
that  '  government  is  instituted  solely  for  the  good  of 
the  whole.'  They  are  necessarily  the  judges  of  what  is 
for  the  good  of  the  citizens. 

"  It  is  not  for  the  court  to  decide  whether  a  law 
is  needed  and  advisable  in  the  general  government  of 
the  people.  This  is  being  more  and  more  recognized  by 
the  courts  in  their  consideration  of  questions  of  consti- 
tutionality. In  a  recent  case  the  United  States 
Supreme  Court,  speaking  through  Mr.  Justice  Holmes, 
said:  'In  answering  that  question,  we  must  be  cau- 
tious about  pressing  the  broad  words  of  the  Fourteenth 
Amendment  to  a  dryly  logical  extreme.  Many  laws 
which  it  would  be  vain  to  ask  the  court  to  overthrow 
could  be  shown,  easily  enough,  to  transgress  a  scholastic 
interpretation  of  one  or  another  of  the  great  guaranties 
in  the  Bill  of  Rights.  They  more  or  less  limit  the 
liberty  of  the  individual  or  they  diminish  property  to 
a  certain  extent.  We  have  few  scientifically  certain 
criteria  of  legislation,  and  as  it  is  often  difiicult  to 
mark  the  line  where  what  is  called  the  police  power 
of  the  states  is  limited  by  the  Constitution  of  the 
United  States,  judges  should  be  slow  to  read  into  the 


402  THE    PUBLIC    CONSCIENCE 

latter  a  nolumus  mutare  as  against  the  law  making 
power.' 

"  It  is  certainly  true  that  the  power  of  the  State  to 
enact  laws  for  the  government  of  its  people,  which  is 
usually  called  the  police  power  of  the  State,  extends  at 
least  to  the  lives,  the  health,  the  general  welfare  and 
safety  of  the  public,  and  against  the  wrongful  or  in- 
jurious exercise  by  any  citizen  of  what  he  may  deem 
his  rights.  The  Supreme  Court  of  the  United  States 
has  '  with  marked  distinctness  and  uniformity  recog- 
nized the  necessity  growing  out  of  the  fundamental 
conditions  of  civil  society  of  upholding  State  police 
regulations  which  were  enacted  in  good  faith,  and  had 
appropriate  and  direct  connection  with  that  protection 
to  life,  health,  and  property  which  each  State  owes  to 
her  citizens.' 

"  It  is  said  in  the  case  of  Gundling  v.  Chicago,  177 
U.  S.  183,  20  Sup.  Ct.  633,  that  '  regulations  respecting 
the  pursuit  of  a  lawful  trade  or  business  are  of  very 
frequent  occurrence  in  the  various  cities  of  the  country, 
and  what  such  regulations  shall  be,  and  to  what  par- 
ticular trade,  business,  or  occupation  they  shall  apply, 
are  questions  for  the  State  to  determine,  and  their 
determination  comes  within  the  proper  exercise  of  the 
police  power  by  the  State,  and,  unless  the  regulations 
are  so  utterly  unreasonable  and  extravagant  in  their 
nature  and  purpose  that  the  property  and  personal 
rights  of  the  citizens  are  unnecessarily,  and  in  a  man- 
ner wholly  arbitrary,  interfered  with  or  destroyed  with- 
out due  process  of  law,  they  do  not  extend  beyond  the 


FREEDOM    OF    ACTION  403 

power  of  the  State  to  pass,  and  they  form  no  subject 
for  Federal  interference.' 

"  In  the  case  of  Holden  v.  Hardij,  169  U.  S.  366,  18 
Sup.  Ct.  383,  it  is  decided  that  '  the  protection  of  the 
health  and  morals,  as  well  as  of  the  lives,  of  citizens,  is 
within  the  police  power  of  the  State  legislature. ' 

"  Mr.  Justice  Brown,  in  delivering  the  opinion  of 
the  court,  discusses  the  progress  in  our  laws  and  the 
necessity  for  changes  as  new  conditions  arise,  and  re- 
ferring to  these  he  said :  '  They  are  mentioned  only  for 
the  purpose  of  calling  attention  to  the  probability  that 
other  changes  of  no  less  importance  may  be  made  in 
the  future,  and  that,  while  the  cardinal  principles  of 
justice  are  immutable,  the  methods  by  which  justice 
is  administered  are  subject  to  constant  fluctuation,  and 
that  the  Constitution  of  the  United  States,  which  is 
necessarily  and  to  a  large  extent  flexible  and  exceed- 
ingly difiicult  of  amendment,  should  not  be  so  construed 
as  to  deprive  the  States  of  the  power  to  so  amend  their 
laws  as  to  make  them  conform  to  the  wishes  of  the 
citizens,  as  they  may  deem  best  for  the  public  welfare, 
without  bringing  them  into  conflict  with  the  supreme 
law  of  the  land.' 

"  It  is  also  well  known  that  in  the  progress  of  society 
the  relations  between  employer  and  employee  have 
changed.  Such  a  law  as  that  before  us  in  the  instant 
case  may  not  have  been  needed  half  a  century  ago, 
but  may  be  needed  at  the  present  time.  In  fact,  the 
department  of  the  government  of  this  State,  known 
as  the  legislature,  has  decided  that  the  law  is  needed." 


404  THE    PUBLIC    CONSCIENCE 

Comment.  This  case  is  valuable  as  containing  so  many  im- 
portant opinions,  cited  by  Judge  Reed,  upon  the  mean- 
ing and  extent  of  the  police  power  of  the  state.  The 
principle  is  applied  here  that,  except  where  the  Federal 
State's  interest  is  paramount,  the  principle  of  police 
power  extends  to  the  several  states  and,  one  might  add 
by  implication,  to  the  minutest  subdivisions  of  the  state. 
The  most  interesting  thing  from  a  sociological  point  of 
view,  is  the  slowly  developing  duel  between  the  legisla- 
tive and  the  constitutional  power  as  expressing  the  ulti- 
mate will  of  a  state.  Under  present  methods  of  interpre- 
tation the  duel  will  never  be  fought  a  outrance.  The 
particular  offense  here  need  hardly  be  noted.  It  is  not 
working  men  in  excess  of  a  certain  given  number  of  hours 
which  is  the  fundamental  offense  but  the  doing  of  any- 
thing which  militates  against  the  safety,  honor  and  wel- 
fare of  the  people  as  a  whole.  The  police  power  principle 
has  developed  until  it  may  well  be  called  a  statement  of 
sociological  law.  Various  things  are  approved  or  dis- 
approved, wisely  or  unwisely,  temporarily  or  over  long 
periods,  merely  as  they  are  conceived  to  influence  the 
welfare  of  the  group. 


Trust  Regulations  —  Monopoly  in  Restraint  of  Trade 

UNITED  STATES  v.  STANDARD  OIL  CO.  OF 
NEW  JERSEY 

173  Fed.  Rep.  177,  1909 

(221  U.  S.  1,  1910.) 

"  In  1899  the  stockholders  of  the  Standard  Oil  Com- 
pany of  New  Jersey  owned  a  majority  of  the  stock  of 
19  other  corporations  in  the  same  proportion  that  they 


FREEDOM    OF    ACTION  405 

owned  the  stock  of  the  Standard  Company  and  these 
20  corporations  controlled,  by  the  ownership  of  the 
majority  of  their  stock  or  otherwise,  many  other  cor- 
porations. Each  of  these  corporations  was  engaged  in 
some  part  of  the  business  of  producing,  buying,  refin- 
ing, transporting  and  selling  petroleum  and  its 
products,  and  they  were  conducting  about  30  per  cent, 
of  the  production  of  the  crude  oil  and  more  than 
75  per  cent,  of  the  business  of  purchasing,  refining, 
transporting,  and  selling  petroleum  and  its  pro- 
ducts in  this  country.  Many  of  them  were  engaged 
in  commerce  in  these  articles  among  the  several 
states  and  with  foreign  nations,  and  were  naturally 
competitive. 

"  During  the  10  years  prior  to  1879,  the  7  individual 
defendants  had  acquired  control  of  many  corporations, 
partnerships  and  refineries  that  had  been  competing 
in  this  business,  had  placed  the  majority  of  the  stock 
of  these  corporations  and  the  interests  in  property  and 
business  thus  obtained  in  various  trustees,  to  be  held 
and  operated  by  them  for  the  stockholders  of  the 
Standard  Oil  Company  of  Ohio,  one  of  the  19  com- 
panies in  which  the  individual  defendants  were  prin- 
cipal stockholders,  and  had  thereby  suppressed  com- 
petition among  these  corporations  and  partnerships. 
In  1879  they  and  their  associates  caused  all  the  trus- 
tees to  convey  their  interests  in  the  stock,  property, 
and  business  of  all  these  corporations  to  5  trustees,  to 
be  held,  operated,  and  distributed  by  them  for  the 
stockholders  of  the  Standard  Oil  Company  of  Ohio. 


406  THE    PUBLIC    CONSCIENCE 

From  1879  until  1892  they  prevented  these  corpora- 
tions and  others  engaged  in  this  business,  of  which  they 
secured  control,  from  competing  in  this  commerce,  by 
causing  the  control  of  their  operations,  and  generally 
of  a  majority  of  their  stocks,  to  be  held  in  trust  for  the 
stockholders  of  the  Standard  Company  of  Ohio,  and 
from  1892  to  1899  they  accomplished  the  same  result 
by  a  similar  stockholding  device  and  by  the  joint  equi- 
table ownership  of  the  majority  of  the  stocks  of  the 
corporations. 

"  In  the  year  1899,  the  7  individual  defendants  and 
their  associates  caused  the  majority  of  the  stock  of  the 
19  corporations  to  be  transferred  to  the  Standard  Oil 
Company  of  New  Jersey  in  exchange  for  its  stock,  so 
that  the  latter  company  thereby  acquired  the  legal 
title  to  a  majority  of  the  stock  of  each  of  the  19  com- 
panies, the  control  of  these  companies  and  of  all  the 
companies  which  they  controlled,  and  the  power  to  fix 
the  rates  of  transportation,  and  the  purchase  and  sell- 
ing prices  of  petroleum  and  its  products,  which  all 
these  corporations  should  pay  and  receive  in  the  con- 
duct of  their  business  in  commerce  among  the  states 
and  with  foreign  nations.  Since  that  exchange  of  stock 
the  7  individual  defendants  have  been  and  are  stock- 
holders and  officers  of  the  Standard  Company  of  New 
Jersey,  which  has  exercised,  and  is  still  using,  that 
power,  and  by  its  use  has  prevented,  and  is  still 
preventing,  competition  in  commerce  among  the 
states  and  with  foreign  nations  among  these  corpora- 
tions. 


FREEDOM    OF    ACTION  407 

"  HELD,  the  transaction  constituted  a  combination 
and  conspiracy  in  restraint  of,  and  to  monopolize,  com- 
merce among  the  states  and  with  foreign  nations,  in 
violation  of  sections  1  and  2  of  the  anti-trust  act  of 
July  2nd,  1890  (Act  July  2,  1890,  c.  647,  26  Stat.  209, 
U.  S.  Comp.  St.  1901,  p.  3200),  and  the  government  is 
entitled  to  an  injunction  against  the  farther  continu- 
ance and  operation  thereof."  (The  above  syllabus 
was  made  by  the  Court  and  is  quoted  from  pp.  177- 
8  of  177  Federal  Reporter,    g.c.c.) 

The  case  was  appealed  to  the  Supreme  Court  of  the 
United  States  and  in  an  opinion  delivered  by  Mr.  Chief 
Justice  White,  was  confirmed  May  15th,  1911,  with 
some  modifications.  With  the  purely  legal  aspects  of 
the  case  and  with  the  intervening  legal  history  we  have 
no  concern.  As  was  said  in  another  case,  the  terms 
"  restraint  of  trade  "  and  "  attempts  to  monopolize  " 
took  their  origin  in  the  common  law.  There  had  been 
doubt  as  to  whether  there  was  a  common  law  of  the 
United  States  governing  the  making  of  contracts  in 
restraint  of  trade  and  the  Anti-Trust  Act  was  passed  to 
remedy  this  defect.  For  the  English  law  at  this  time 
see  Mogul  Steamship  Co.  v.  McGregor. 

The  United  States  has  followed  the  line  of  develop- 
ment of  the  English  law  but  the  divergence,  purely  on 
the  grounds  of  law,  between  this  case  and  the  one  just 
cited,  is  noteworthy. 

Comment.  With  the  wisdom  of  the  course  pursued  by  the 
government  in  such  prosecutions  as  this  we  have  here 
nothing  to  do.    The  case  is  not  cited  as  an  "  awful  ex- 


408  THE    PUBLIC    CONSCIENCE 

ample  "  but  merely  to  illustrate  the  fact  that,  if  the  policy 
of  the  state  is  to  require  competition,  a  manifest  close 
monopoly,  of  the  skillful  character  of  this  one,  cannot 
and  will  not  be  sustained.  Nor  it  is  pertinent  to  reflect 
upon  the  subsequent  fortunes  of  the  owners  of  the  Stand- 
ard Oil  stock  after  the  "  dissolution  "  of  the  "  monopoly." 
We  have  here  nothing  to  do  with  the  effectiveness  of  the 
measures  taken  to  prevent  monopoly  but  only  with  the 
apparent  fact  that,  believing  monopoly  in  restraint  of 
commerce  to  be  prejudicial  to  the  best  interests  of  the 
state,  the  state  uses  all  its  means  to  suppress  the  monop- 
oly. Compare  the  following  case  and  the  comment 
upon  it. 


Conspiracy  —  Monopoly 

MOGUL  STEAMSHIP  CO.,  Ltd.   v.  McGREGOR 

In  the  Court  of  Appeal,  1889 

(23  Q.  B.  Div.,  598.) 

The  defendants  were  a  firm  of  ship  owners  trading 
between  China  and  Europe,  who  with  a  view  to  obtain- 
ing for  themselves  a  monopoly  of  the  homeward  tea 
trade,  and  thereby  keeping  up  a  rate  of  freight,  formed 
themselves  into  an  association,  and  offered  to  such 
merchants  and  shippers  in  China  as  shipped  their  tea 
exclusively  in  vessels  belonging  to  members  of  the 
association  a  rebate  of  5  per  cent  on  all  freights  paid 
by  them.  The  plaintiffs,  who  were  rival  ship  owners 
trading  between  China  and  Europe,  were  excluded  from 


FREEDOM    OF    ACTION  409 

all  the  benefits  of  the  association,  and  in  consequence 
of  such  exclusion  sustained  damage. 

There  was  no  question  as  to  the  facts.  On  a  par- 
ticular occasion  the  plaintiffs  sent  two  of  their  ships, 
the  Pathan  and  the  Afghan,  to  Hankow  in  order  to  ob- 
tain freight.  The  defendants  thereupon  sent  several 
of  their  ships  to  Hankow  with  instructions  to  cut 
under  the  rates  of  their  rivals  even  though  they  had 
to  carry  freights  at  a  great  loss.  This  was  done  and 
suit  was  thereupon  brought. 

Lord  Coleridge  gave  judgment  for  the  defendants, 
thus  confirming  the  right  of  association  and  refusing 
to  acknowledge  conspiracy  or  monopoly.  21  Q.  B.  Div. 
544. 

In  his  decision  Lord  Coleridge  called  attention  to 
the  public  service  rendered  by  the  defendants  in  run- 
ning steamers  regularly  all  the  year  round  from  China 
to  England  and  back  again.  This  they  could  not  have 
done  had  they  not  had  a  practical  monopoly  of  the  tea 
trade. 

"  If  the  combination  is  unlawful,  then  the  parties 
to  it  commit  a  misdemeanor,  and  are  offenders  against 
the  state ;  and  if,  as  a  result  of  such  unlawful  combina- 
tion and  misdemeanor,  a  private  person  receives  a 
private  injury,  that  gives  such  person  a  right  of  private 
action." 

..."  I  do  not  doubt  the  acts  done  by  the  defend- 
ants here,  if  done  wrongfully  and  maliciously,  or  if 
done  in  furtherance  of  a  wrongful  and  malicious  com- 
bination, would  be  ground  for  an  action  on  the  case 


410  THE    PUBLIC    CONSCIENCE 

at  the  suit  of  one  who  suffered  injury  from  them."  But 
this  was  a  lawful  proceeding.  There  is  no  evidence  of 
coercion  or  bribing.  It  is  not  in  restraint  of  trade 
more  than  if  two  tailors  in  a  village  agreed  to  give 
their  customers  five  per  cent  off  their  bills  at  Christmas 
on  condition  of  their  customers  dealing  with  them 
and  with  them  only. 

But  it  has  been  contended  that  the  motive  of  the 
defendants  was  to  ruin  the  plaintiffs.  If  so,  this  is 
actionable;  but  all  trade  is  selfish.  "  Very  lofty  minds, 
like  Sir  Philip  Sidney  with  his  cup  of  water,  will  not 
stoop  to  take  an  advantage,  if  they  think  another  wants 
it  more.  Our  age,  in  spite  of  high  authority  to  the 
contrary,  is  not  without  its  Sir  Philip  Sidneys;  but 
these  are  counsels  of  perfection  which  it  would  be  silly 
indeed  to  make  the  measure  of  the  rough  business  of 
the  world  as  pursued  by  ordinary  men  of  business.  The 
line  is  in  words  difficult  to  draw,  but  I  cannot  see  that 
these  defendants  have  in  fact  passed  the  line  which 
separates  the  reasonable  and  legitimate  selfishness  of 
traders  from  wrong  and  malice." 

This  judgment  of  Lord  Coleridge  was  confirmed  in 
the  Court  of  Appeal  by  Bowen  and  Fry,  L.  J  J.,  Lord 
Esher,  M.  R.,  dissenting. 

Fry,  L.  J.,  said  inter  alia:  *'The  stream  of  modern 
legislation  runs  strongly  in  favor  of  allowing  great  com- 
binations of  persons  interested  in  trade,  and  intended 
to  govern  or  regulate  the  proceedings  of  large  bodies 
of  men,  and  thus  necessarily  to  interfere  with  what 
would  have  been  the  course  of  traffic  if  unaffected  by 


FREEDOM    OF   ACTION  411 

such  combinations.  I  therefore  conclude  that  the 
combination  in  the  present  case  cannot  be  held  illegal 
as  opposed  to  the  policy  of  the  law."  ^ 

Comment.  It  must  be  evident  to  any  one  that  this  was 
precisely  a  "  combination  in  restraint  of  trade."  More- 
over the  usual  practice  of  the  common  law  would  be  to 
construe  malicious  intent  from  the  inevitable  conse- 
quences of  the  defendants'  acts.  They  may  not  have 
meant  actively  to  ruin  their  competitors  but  they  were 
certainly  indifferent  if  ruin  should  follow  as  a  necessary 
consequence  of  suppressing  competition.  The  whole  dif- 
ference lies  in  the  conception  of  public  policy.  It  was 
to  the  advantage  of  England  and  her  various  possessions 
that  a  regular  service  be  maintained  between  China  and 
London.  Law  follows  this  need.  Justice  Fry's  opinion 
is  most  complacent. 

Hours  of  Labor 
THE  BAKERS'  CASE 

LocHNEB  V.  New  York 

198  U.  S.,  45  (1905) 

The  indictment  averred  that  the  defendant  "  wrong- 
fully and  unlawfully  required  and  permitted  an  em- 
ploye working  for  him  ui  his  .  .  .  bakery  in  the  city 
of  Utica  ...  to  work  more  than  sixty  hours  a  week." 
He  had  previously  been  convicted  of  the  same  offense 

1  S.  C,  T.  Dodd  in  Harvard  Law  Review,  7  :  162,  says:  "This 
case  has  settled  the  law  of  England.  In  this  country,  nothing  is 
settled." 


412  THE    PUBLIC    CONSCIENCE 

which  was  a  violation  of  what  was  known  as  the  labor 
law,  section  110,  He  therefore  committed  a  crime  or 
misdemeanor,  second  offense.  He  was  convicted  of  a 
misdemeanor,  second  offense,  in  the  County  Court  and 
sentenced  to  pay  a  fine  of  $50  or  go  to  jail  not  to 
exceed  fifty  days.  Appeals  were  taken  to  the  Appellate 
Division  of  the  Supreme  Court  of  New  York  and  to 
its  Court  of  Appeals,  the  conviction  being  affirmed  both 
times.  The  case  then  came  before  the  Supreme  Court 
of  the  United  States. 

The  Court  (Mr.  Justice  Peckham  delivering  the 
opinion)  held  that  the  statute  "  necessarily  interferes 
with  the  right  of  contract  between  the  employer  and 
employees  "  —  the  right  to  purchase  or  sell  labor  being 
guaranteed  under  the  Fourteenth  Amendment. 
"  There  are,  however,  certain  powers  existing  in  the 
sovereignty  of  each  state  in  the  Union,  somewhat 
vaguely  termed  police  powers,  the  exact  description 
and  limitation  of  which  have  not  been  attempted  by 
the  courts.  Those  powers,  broadly  stated  and  without, 
at  present,  any  attempt  at  a  more  specific  limitation, 
relate  to  the  safety,  health,  morals  and  general  wel- 
fare of  the  public.  Both  property  and  liberty  are  held 
on  such  reasonable  conditions  as  may  be  imposed  by 
the  governing  power  of  the  State  in  the  exercise  of 
those  powers,  and  with  such  conditions  the  Fourteenth 
Amendment  was  not  designed  to  interfere." 

In  Holden  v.  Hardy,  169  U.  S.  366,  a  Utah  statute 
which  limited  the  employment  of  labor  in  underground 
mines  to  eight  hours  a  day,  "  except  in  cases  of  emer- 


FREEDOM    OF    ACTION  413 

gency,  where  life  or  property  is  in  imminent  danger," 
was  held  to  be  a  valid  exercise  of  the  police  power  of 
the  state.  The  statute  of  New  York  has  noi  emer- 
gency clause  in  it  and  Holden  v.  Hardy  does  not  apply. 
There  is  a  limit  to  the  police  power,  otherwise  it  would 
become  a  delusive  name  for  the  supreme  sovereignty 
of  the  state  to  be  exercised  free  from  constitutional 
restraint.  This  is  not  a  question  of  substituting  the 
judgment  of  the  court  for  that  of  the  legislature.  The 
law  involves  neither  the  safety,  morals  nor  welfare  of 
the  public  and  the  interest  of  the  public  is  not  in  the 
slightest  degree  affected  by  such  an  act. 

The  public  health  is  not  threatened  to  an  extent  to 
make  interference  justifiable  since  the  trade  of  baker 
is  not  usually  dangerous  to  health.  This  is  an  illegal 
interference  with  the  rights  of  individuals,  both  em- 
ployers and  employees,  to  make  contracts  regarding 
labor  upon  such  terms  as  they  may  think  best.  The 
limitation  of  hours  of  labor  here  has  no  direct  relation 
to  the  public  health  but  is  aimed  at  regulating  the 
hours  of  labor  in  a  private  business. 

Judgment  of  the  lower  courts  all  reversed  and  the 
case  remanded  to  the  County  Court  for  further  proceed- 
ings not  inconsistent  with  this  opinion. 

Justice  Harlan  dissented,  Justices  White  and  Day 
concurring.  The  exercise  of  the  police  power  to  limit 
contract  is  an  interference  with  liberty.  There  is  a 
liberty  of  contract  which  cannot  be  violated  even  under 
direct  legislative  enactment.  But  "  a  decision  that  the 
New  York  statute  is  void  under  the  Fourteenth  Amend- 


414  THE    PUBLIC    CONSCIENCE 

ment  will,  in  my  opinion,  involve  consequences  of  a 
far  reaching  and  mischievous  character ;  for  such  a  de- 
cision would  seriously  cripple  the  inherent  power  of 
the  States  to  care  for  the  lives,  health  and  well  being 
of  their  citizens.  .  .  .  Legislative  enactments  should  be 
recognized  and  enforced  by  the  courts  as  embodying 
the  will  of  the  people,  unless  they  are  plainly  and 
palpably  beyond  all  question  in  violation  of  the  funda- 
mental law  of  the  Constitution." 

Mr.  Justice  Holmes  dissenting. 

"  This  case  is  decided  upon  an  economic  theory  which 
a  large  part  of  the  country  does  not  entertain.  .  .  . 
State  constitutions  and  state  laws  may  regulate  life  in 
many  ways  which  we  as  legislators  might  think  as  in- 
judicious or  if  you  like  as  tyrannical  as  this,  and  which 
equally  with  this  interfere  with  the  liberty  to  contract. 
Sunday  laws  and  usury  laws  are  ancient  examples.  A 
more  modern  one  is  the  prohibition  of  lotteries.  The 
liberty  of  the  citizen  to  do  as  he  likes  so  long  as  he 
does  not  interfere  with  the  liberty  of  others  to  do  the 
same,  which  has  been  a  shibboleth  for  some  well  known 
writers  is  interfered  with  by  school  laws,  by  the  Post 
Office,  by  every  state  or  municipal  institution  which 
takes  his  money  for  purposes  thought  desirable, 
whether  he  likes  it  or  not.  The  Fourteenth  Amend- 
ment does  not  enact  Mr.  Herbert  Spencer's  Social 
Statics.  The  other  day  we  sustained  the  Massachusetts 
vaccination  law.  .  .  .  Some  of  these  laws  embody  con- 
victions or  prejudices  which  judges  are  likely  to  share. 
But  a  constitution  is  not  intended  to  embody  a  par- 


FREEDOM    OF    ACTION  415 

ticular  economic  theory,  whether  of  paternalism  and 
the  organic  relation  of  the  citizen  to  the  States  or  of 
laissez-faire.  It  is  made  for  people  of  fundamentally 
differing  views  and  the  accident  of  our  finding  certain 
opinions  natural  and  familiar  or  novel  and  even  shock- 
ing ought  not  to  conclude  our  judgment  upon  the 
question  whether  statutes  embodying  them  conflict 
with  the  Constitution  of  the  United  States.  ...  I 
think  that  the  word  liberty  in  the  Fourteenth  Amend- 
ment is  perverted  when  it  is  held  to  prevent  the 
natural  outcome  of  a  dominant  opinion,  unless  it  can 
be  said  that  a  rational  and  fair  man  necessarily  would 
admit  that  the  statute  proposed  would  infringe  funda- 
mental principles  as  they  have  been  understood  by  the 
traditions  of  our  people  and  our  law.  It  does  not  need 
research  to  show  that  no  such  sweeping  condemnation 
can  be  passed  upon  the  statute  before  us.  A  reason- 
able man  might  think  it  a  proper  measure  on  the  score 
of  health.  Men  whom  I  certainly  would  not  pronounce 
unreasonable  would  uphold  it  as  a  first  installment  of 
a  general  regulation  of  the  hours  of  work.  Whether  in 
the  latter  aspect  it  would  be  open  to  the  charge  of 
inequality  I  think  it  unnecessary  to  discuss." 

Comment.  Here  we  have  the  majority  opinion  and  in 
fact  the  whole  court,  with  the  exception  of  Justice 
Holmes,  on  the  side  which  declares  that  statutes  of  this 
nature,  made  under  the  so-called  police  power,  actually 
do  interfere  with  freedom  of  contract.  Justice  Holmes 
—  but  in  a  dissenting  opinion  only  —  declares  that  there 
are  many  interferences  with  the  liberty  of  the  citizen 
much  greater  than  this. 


416  THE    PUBLIC    CONSCIENCE 

The  question  has  never  been  fairly  faced.  "  Is  there 
any  limit  to  the  police  power  of  the  state  under  a  con- 
stitutional government? "  Perhaps  it  never  will  be 
faced.  Justice  Peckham  did  hold  that  there  is  a  limit 
to  the  police  power  but  he  hastened  to  add  that  there  is 
here  no  conflict  between  constitution  and  legislature.  The 
court  seems  to  have  been  divided  on  the  question  of  jact. 
If  the  baker's  trade  had  been,  in  the  opinion  of  the 
majority,  detrimental  to  the  public  welfare,  etc.,  then 
the  famous  case  would  have  been  decided  otherwise.  Jus- 
tice Holmes  held  that  that  is  a  perverse  interpretation  of 
liberty  of  the  individual  which  is  allowed  to  prevent  the 
natural  outcome  of  a  dominant  opinion.  I  may  be 
allowed  to  point  out  that  every  case  under  the  Liberty 
Classification  upholds  his  position ;  and  to  issue  the  chal- 
lenge to  have  a  case  produced  which  is  opposed  to  it  in 
principle. 

Blacklisting 

New  York  Times,  July  18,  August  2  mid  other  'places. 

On  July  18th,  1916,  the  British  Government  pub- 
lished a  list  of  seventy  to  eighty  business  firms  and  in- 
dividuals domiciled  in  the  United  States  with  whom 
residents  of  the  United  Kingdom  were  forbidden  to 
deal.  Other  countries  had  formerly  been  black-listed 
in  the  same  way. 

Modern  conditions  of  credit  and  commerce  make  it 
possible  for  an  enemy  outside  belligerent  territory  to 
trade  with  his  country.  It  is  held  to  be  purely  a  piece 
of  domestic  legislation  which  interferes  with  trade  even 
in  the  case  of  specified  firms,  only  by  prohibiting  per- 
sons domiciled  in  the  United  States  from  dealing  with 


FREEDOM    OF    ACTION  417 

these  firms.  It  is  a  consequence  simply  and  solely  of 
the  right  of  the  state  to  limit  or  control,  in  the  inter- 
ests of  the  state,  the  trade  regulations  of  its  own 
subjects. 

But  the  outstanding  contracts  of  British  Insurance 
Companies  with  firms  on  the  British  black-list  will  not 
be  interfered  with. 


STATE    V.   LAY 

Supreme  Court  of  Errors  of  Connecticut,  1912 

(Reported  84  Atlantic  Reporter,  522.    112  Bui.  Lab.  St.,  51.) 

Charles  H.  Lay  was  convicted  of  violating  chapter 
163  of  the  Acts  of  1911  of  the  laws  of  Connecticut,  and 
appealed.  The  law  in  question  regulates  the  conduct 
of  bureaus  or  agencies  maintained  by  any  person, 
corporation,  or  association,  for  the  purpose  of  keeping 
a  record  of  the  "  character,  skill,  acts,  or  affiliations  of 
any  person  whereby  his  reputation,  standing  in  a  trade, 
or  ability  to  secure  employment  may  be  affected."  Lay 
was  the  agent  for  an  association  of  manufacturers  of 
Hartford  County,  and  maintained  a  record  of  the 
nature  described  in  the  statute,  and  had  refused  to 
allow  the  commissioner  of  labor  to  make  an  inspection 
when  he  had  requested  the  same  under  the  provisions 
of  the  act.  In  the  course  of  the  trial  it  was  admitted 
that: 

"  Said  association  maintains  a  central  bureau,  con- 
veniently located,  for  two  purposes :    First,  for  the  pur- 


418  THE    PUBLIC    CONSCIENCE 

pose  of  supplying  to  members  of  said  association  suit- 
able employees  when  and  as  needed;  and,  second,  for 
the  purpose  of  furnishing  information  to  members  rela- 
tive to  the  health,  character,  reputation,  habits,  dis- 
position, efficiency,  and  capacity  as  wage  earners  of 
persons  applying  to  members  for  employment  as  such 
information  may  be  determined,  and  reported  to  said 
association  by  the  former  employer  or  employers  of 
such  persons.  In  determining  the  history  of  applicants 
in  this  respect,  it  is  customary  to  accept  as  final  the 
report  of  the  foreman  under  whom  said  persons  may 
have  worked;  and  the  persons  affected  by  the  record 
thus  obtained  concerning  them  are  without  any  knowl- 
edge or  means  of  knowledge  of  the  contents  of  such  re- 
port, and  do  not  know  whether  it  is  or  may  be  used 
either  in  favor  of  or  against  them  when  seeking  em- 
ployment elsewhere." 

The  contention  was  made  that  the  act  in  question 
was  unconstitutional,  as  violating  both  the  funda- 
mental law  of  the  State  and  of  the  United  States. 
The  court  below  refused  to  adopt  this  view,  and  its 
attitude  was  sustained  by  the  supreme  court,  on  ap- 
peal. Judge  Curtis,  who  delivered  the  opinion  of  the 
court,  having  stated  the  facts  and  disposed  of  certain 
preliminary  matters,  concluded  his  opinion  as  follows: 

"  The  precise  question  presented  by  this  record  is 
the  validity  of  this  public  act  in  so  far  as  it  imposes 
duties  upon  the  supporters  and  maintainers  of  such  a 
bureau  as  the  defendant  had  charge  of  to  grant  an 
inspection  of  its  records  and  furnish  certain  in  forma- 


FREEDOM    OF    ACTION  419 

tion  to  the  commissioner  of  the  bureau  of  labor  statis- 
tics as  prescribed  in  the  act.  The  legislature  in  this 
act  declares  by  implication  that  the  public  welfare 
requires  that  the  voluntary  maintenance  of  such  a 
bureau  should  be  under  such  relations  to  the  bureau 
of  labor  statistics  as  the  statute  provides.  This  court 
cannot  find  that  the  legislature  is  wrong  in  this  con- 
clusion. The  provisions  of  this  act  relating  to  such 
duties  and  rights  as  pertain  to  the  commissioner  of  the 
bureau  of  labor  statistics  are  not  so  clearly  and  mani- 
festly beyond  the  legitimate  field  of  legislation  as  to  be 
invalid.  The  purpose  of  this  legislation  in  the  particu- 
lars now  under  consideration  reasonably  may  have  been 
esteemed  by  the  legislature  of  such  importance  to  the 
general  welfare  for  statistical  or  other  lawful  purposes 
of  such  bureau  of  labor  statistics,  under  the  statute 
governing  it,  as  to  make  the  provisions  relating  to  the 
commissioner  of  the  bureau  of  labor  statistics  a  valid 
exercise  of  legislative  power." 

Comment.  Another  case  of  police  power.  The  menace  to 
the  liberties  of  the  people  here  lies  in  secrecy  and  arbi- 
trary power.  There  are  black  hsts  in  many  organiza- 
tions whose  very  existence  is  unsuspected  and  there  are 
many  ways  of  keeping  such  lists  so  that  the  law  cannot 
reach  them;  but  the  principle  is  evident  that  the  law 
would  reach  them  if  it  could.  Blacklisting  is  socially  un- 
desirable on  the  basis  of  such  a  decision  as  this. 


420  THE    PUBLIC    CONSCIENCE 

Contract  and  Blacklisting 

SEWARD  V.  SEABOARD  AIR  LINE  RAILWAY 

Supreme  Court  of  North  Carolina,  1912 

(Reported  75  Southeastern  Reporter,  34.     112  Bui.  Lab.  St.,  52.) 

R.  H.  Seward  sued  the  company  named  to  recover 
damages  for  preventing  or  attempting  to  prevent  him 
from  obtaining  employment  as  a  locomotive  engineer. 
The  suit  was  based  on  the  provisions  of  chapter  858, 
Acts  of  1909,  which  provides  a  penalty  in  case  any 
person,  agent,  company,  or  corporation,  after  discharg- 
ing any  employee  from  its  service  shall  prevent  or  at- 
tempt to  prevent  by  word  or  writing  of  any  kind  such 
discharged  employee  from  obtaining  employment  else- 
where, but  does  not  forbid  the  giving  of  a  truthful 
statement  in  writing  on  request  to  any  person  to  whom 
the  discharged  workman  has  applied  for  employment 
as  to  the  reason  of  such  discharge.  Seward  had  worked 
for  about  two  years  for  the  defendant  company,  being 
discharged  on  January  9,  1909.  Thereafter  he  applied 
for  employment  with  three  other  companies,  each  of 
which,  with  his  consent,  wrote  to  his  former  employer 
requesting  Seward's  record.  The  reply  to  the  three 
companies  was  practically  the  same,  showing  various 
suspensions  for  refusing  to  go  out,  for  damage  to  en- 
gine, on  account  of  accidents,  and  for  minor  offenses, 
and  dismissal  on  the  date  above  mentioned  for  leaving 


FREEDOM    OF    ACTION  421 

the  station  on  the  time  of  another  train,  resulting  in  a 
head-on'  collision.  In  addition  to  the  above  it  was 
stated  in  one  of  the  reports  that  "  this  man  is  now 
suing  the  Seaboard  Air  Line  for  personal  injuries." 

Seward  was  nonsuited  in  the  superior  court  of  Wake 
County  and  appealed,  contending  that  the  company 
had  no  right  under  the  statute  to  give  his  record,  and 
could  do  no  more  than  state  the  reasons  for  his  dis- 
charge, and  that  if  it  could  give  the  record  of  the  plain- 
tiff it  had  not  stated  it  truthfully  and  was  actuated  by 
malice.  The  company  contended  that  its  communica- 
tions were  privileged  and  not  actionable  in  the  absence 
of  malice  and  that  there  was  no  evidence  of  malice. 

The  opinion  of  the  court  was  to  the  effect  that  there 
was  sufficient  evidence  to  take  the  case  to  the  jury, 
and  a  new  trial  was  ordered.  Judge  Allen,  who  de- 
livered the  opinion  of  the  court,  spoke  in  part  as 
follows : 

"  When  we  look  to  the  common  law,  we  find  that  the 
employer  had  the  right  to  employ  whom  he  pleased, 
and  to  discharge  with  or  without  reason,  and  that  the 
employee  could  select  the  person  whom  he  would  serve, 
and  had  the  right  to  quit  the  service  at  pleasure;  the 
only  limitation  upon  the  exercise  of  the  right  by  either 
being  the  terms  of  the  contract  of  service.  (Italics 
mine,    g.c.c.) 

"An  employer  has  a  right  to  select  his  employees 
according  to  what  standard  he  may  choose,  though 
such  standard  be  arbitrary  or  unreasonable.  An  em- 
ployer certainly  has  a  right  to  refuse  to  employ  any 


422  THE    PUBLIC    CONSCIENCE 

one  whom  he  knows  to  have  left  another  employer  in 
violation  of  a  reasonable  rule  which  both  employers 
are  seeking  to  enforce.  .  .  .  There  are,  however,  limita- 
tions upon  the  rights  of  the  employers  in  this  matter. 
While  the  employee  is  bound  by  the  reasonable  rules 
of  the  employer  as  a  part  of  the  contract  of  employ- 
ment, and  may  be  reported  to  other  employers  for  a 
breach  of  those  rules,  there  is  a  correlative  duty  upon 
the  employer  not  to  report  an  employee  wrongfully. 
The  rule  which  enters  into  the  contract  of  employment 
is  as  much  a  part  of  the  contract  of  the  employer  as  of 
the  employee,  and  both  are  bound  by  it.  The  employer 
is  strictly  within  his  rights  as  long  as  he  reports 
no  employee  for  a  violation  of  the  rule  except  such 
as  have  actually  violated  it.  When,  however,  he 
wrongfully  makes  such  a  report  and  an  employee 
is  thereby  damaged,  such  employee  has  a  right  of 
action." 

"As  was  said  in  Willner  v.  Silverman,  109  Md.  356, 
71  Atl.  964  :  2  '  In  furtherance  of  their  common  wel- 
fare, and  in  settlement  of  their  ofttimes  conflicting  in- 
terests, both  employers  and  employees  stand  upon  a 
plane  of  perfect  equality  before  the  law,  enjoying  the 
same  freedom  and  amenable  to  the  same  restrictions.' 
When  the  employee  was  discharged,  he  could  not  re- 
quire a  statement  of  the  reasons  for  the  discharge,  and 
the  employer  was  under  no  legal  obligations  to  give 
to  anyone,  with  whom  he  sought  employment,  his 
record  or  character,  while  in  his  service,  although  he 
could  do  so  upon  request  and  according  to  some  of 


FREEDOM    OF    ACTION  423 

the  authorities  voluntarily,  and  there  would  be  no  lia- 
bility in  damages  if  the  report  was  made  in  good  faith 
and  in  the  belief  that  it  was  true,  although  in  fact 
false ;  but,  if  made  maliciously,  it  was  actionable. 

"  The  report  was  regarded  as  privileged,  and,  in  the 
absence  of  express  malice,  no  cause  of  action  could  be 
based  on  its  publication;  this  doctrine  resting  on 
the  moral  obligation  of  the  employer.  The  life  and 
limb  of  the  employee  were  largely  dependent  on  the 
intelligence,  skill,  and  prudence  of  his  co-employees, 
and  it  was  the  duty  of  the  employer  to  exercise  care  to 
see  that  no  one  was  admitted  to  the  common  employ- 
ment who  was  careless  or  incompetent.  The  employer 
owed  the  same  duty  to  the  public,  whose  lives  and 
property  were  committed  to  his  care,  and  this  duty 
could  not  be  performed  unless  one  employer  could, 
without  fear  of  liability,  communicate  freely  his  honest 
belief  as  to  the  standing  of  a  discharged  employee,  and 
the  law  therefore  said  that  such  communications  were 
presumed  to  be  made  in  the  performance  of  a  duty, 
and,  in  the  absence  of  express  malice,  they  could  not 
be  made  the  basis  of  an  action. 

"  We  cannot  think  it  was  the  intention  of  the 
general  assembly  to  withdraw  these  wholesome  safe- 
guards from  employees  and  the  public,  and  that  the 
statute  may  be  effective  and  will  serve  a  useful  pur- 
pose without  abrogating  the  principles  of  the  common 
law.  Prior  to  the  ratification  of  the  act  of  1909,  state- 
ments as  to  the  character  and  competency  of  discharged 
employees  were  frequently  made  voluntarily,  and  not 


424  THE    PUBLIC    CONSCIENCE 

upon  request,  and  were  sometimes  prompted  by  mali- 
cious motives  when  the  motive  was  difficult  of  proof; 
when  malice  and  the  loss  of  service,  as  the  result  of  the 
statement,  were  proven,  the  damages  were  difficult  of 
admeasurement;  and  when  there  was  no  loss  of  em- 
ployment, but  a  mere  attempt  to  prevent  the  employee 
from  obtaining  it,  no  compensatory  damages  could  be 
awarded.  The  act  remedies  these  defects,  and  under 
its  provisions  a  statement  as  to  the  standing  of  a  dis- 
charged employee  is  not  privileged  unless  made  upon 
request,  and  whether  privileged  or  not,  if  made  mali- 
ciously, and  the  employer  has  thereby  prevented  or 
attempted  to  prevent  the  discharged  employee  from 
obtaining  employment,  the  jury  may  award  penal 
damages. 

"  Malice  or  want  of  good  faith  is  established  when  it 
is  shown  that  the  matter  published  was  false  within 
the  knowledge  of  the  publisher,  or  malice  may  be 
established  by  showing  a  bad  motive  in  making  the 
publication;  as  that  it  was  made  more  publicly  than 
was  necessary  to  protect  the  interest  of  the  parties  con- 
cerned, or  that  it  contained  matter  not  relevant  to  the 
occasion,  or  that  the  publisher  entertained  ill  will 
toward  the  person  whom  the  publication  concerned." 
(Town.  S.  &  L.,  sec.  245.) 

"  The  employer  has  the  right,  under  this  statute 
upon  request,  to  give  '  a  truthful  statement  of  the  rea- 
son for  such  discharge,'  and  we  do  not  give  to  these 
words  the'  restricted  meaning  contended  for  by  the 
plaintiff,  as  in  our  opinion  they  include  the  record  of 


FREEDOM    OF    ACTION  425 

the  employee,  and  if  the  statement  is  so  made,  in  the 
honest  behef  that  it  is  true,  and  not  maliciously,  the 
employer  is  protected. 

"  The  Supreme  Court  of  Texas,  in  discussing  a  simi- 
lar statute,  says  in  Railroad  v.  Hixon,  137  S.  W.  345: 
*  By  the  term,  "  a  true  statement "  of  the  cause  of  his 
discharge,  is  meant  the  employer  shall  give  fairly, 
honestly,  and  in  good  faith  the  ground  or  cause  upon 
which  the  master  has  acted.  It  was  meant  that  he 
should  not  be  permitted  to  discharge  for  one  reason, 
and,  when  called  on  to  give  a  statement  thereof,  assign 
a  different  reason.' 

"Applying  these  principles  to  the  evidence,  and  it 
appearing  that  the  plaintiff  admits  that  he  was  sus- 
pended for  alleged  misconduct  165  days  during  a  service 
of  a  little  less  than  two  years  with  the  defendant,  that 
he  was  given  a  hearing  as  to  each  charge,  and  knew  of 
the  record  that  was  made  against  him,  and  that  the 
Brotherhood  of  Locomotive  Engineers,  of  which  he  was 
a  member,  refused  to  prosecute  his  appeal  when  he 
was  finally  discharged,  we  would  not  hesitate  to  affirm 
the  judgment  of  nonsuit  but  for  the  fact  that  the  plain- 
tiff says  that  the  charges  contained  in  the  report  made 
by  the  defendant  are  not  true,  and  the  further  fact  that 
the  defendant  incorporated  in  its  letter  of  July  9,  1909, 
written  by  its  superintendent,  Poole,  the  statement, 
'  and  will  state  further  that  this  man  is  now  suing  the 
S.  A.  L.  for  personal  injury,'  which  could  not  be  a  part 
of  the  record  of  the  plaintiff  while  in  the  employment 
of  the  defendant,  nor  a  reason  for  his  discharge,  as  the 


426  THE    PUBLIC    CONSCIENCE 

suit  was  instituted  after  he  left  the  service  of  the 
defendant. 

"  It  is  not  a  sufficient  answer  as  to  the  effect  of  this 
evidence  to  say  that  the  statement  is  true,  as  it  was  not 
information  the  defendant  was  requested  to  give,  and 
did  not  hear  on  the  character  or  competency  of  the 
plaintiff,  and  was  calculated  to  prejudice  him. 

"  There  is  also  evidence  that  the  action  instituted  by 
the  plaintiff  against  the  defendant  referred  to  in  the 
letter  of  July  9,  1909,  was  to  recover  damages  for  per- 
sonal injuries  sustained  in  a  collision,  which  was  one  of 
the  most  serious  charges  against  the  plaintiff ;  that  this 
action  was  settled  in  October,  1909,  by  the  payment  of 
$1,350  to  the  plaintiff,  and  that  thereafter  the  defend- 
ant, in  its  letter  of  December,  15th,  1909,  retained  this 
same  charge  against  the  plaintiff. 

"  These  facts  at  least  permit  the  inference,  which 
the  jury  are  not  compelled  to  adopt,  that  the  defendant 
would  not  have  paid  the  sum  of  $1,350  to  the  plaintiff 
voluntarily,  on  account  of  injuries  sustained  in  a  colli- 
sion, if  he  had  been  guilty  of  wrongdoing,  and  that  the 
retention  and  publication  of  the  charge  after  the  settle- 
ment was  with  knowledge  that  it  was  not  true.  The 
statute  is  a  wise  one  and  will  serve  a  useful  purpose  if 
judiciously  administered,  but  juries  in  the  assessment 
of  damages,  when  they  can  be  recovered,  should  mark 
the  line  and  discriminate  clearly  between  the  employee 
who  has  honestly  endeavored  to  perform  his  duty, 
who  is  entitled  to  the  highest  consideration,  and  the 
negligent  and  reckless  employee  who  is  a  menace 


FREEDOM    OF    ACTION  427 

to   his   coemployees   and   the    public."      (All   italics 
mine,    g.c.c.) 

Comment.  This  is  a  complicated  case.  The  argument  of 
Judge  Allen  must  be  read  in  full  if  possible.  Contract 
appears  here  again  with  the  ancient  conception  of  free- 
dom between  the  parties  —  and  later  on  we  come  upon 
the  hoary  claim  of  equality  before  the  law  of  employer 
and  employee.  This  claim  is  somewhat  ideal  and  it  is  sig- 
nificant of  the  law's  will ;  but  even  more  significant  is  the 
tendency  of  modern  higher  courts  to  recognize  the  fact 
of  existent  inequality  with  an  attempt  to  weight  the  side 
of  the  weaker  so  as  to  bring  about  something  like  equal- 
ity. This  is  evident  in  strike  and  picketing  cases.  Let 
me,  at  the  risk  of  repetition,  again  emphasize  that  this 
study  has,  as  such,  no  interest  in  social  reform.  When 
we  here  recognize  the  fact  of  the  law's  endeavor  to  hold 
the  scales  evenly  between  capital  and  labor,  it  is  simply 
the  fact  which  we  recognize.  The  failure  of  statutes  or 
of  common  law  practice  to  bring  about  actual  equality  is 
totally  irrelevant.  Statutes  accomplish  much  when  they 
prevent  the  grosser  "  star  chamber  "  proceedings.  The 
plaintiff  in  this  case  had  no  ground  to  complain  of 
injustice. 

Restraint  of  Trade 

MARINELLI   v.   UNITED   BOOKING 
OFFICES,   ETC. 

U.  S.  District  Court,  S.  D.  New  York,  1914 

(227  Federal  Reporter,  165.     189  Bui.  Lab.  St.,  56.) 

H.  B.  Marinelli  (Ltd.)  brought  action  at  law  for 
lamages  against  the  company  named  and  a  number  of 


428  THE    PUBLIC    CONSCIENCE 

other  defendants.  The  latter  were  alleged  to  nave  de- 
stroyed the  plaintiff's  business  by  illegal  combination 
in  violation  of  the  Sherman  Anti-trust  Act.  The  indi- 
vidual defendants  were  owners  of  many  vaudeville 
theaters  in  the  United  States,  roughly  arranged  in  two 
circuits,  an  eastern  circuit  which,  together  with  other 
theaters,  is  known  as  the  Keith  circuit ;  and  a  western 
circuit,  which  together  with  theaters  owned  by  other 
parties  comprises  what  is  known  as  the  Orpheum  cir- 
cuit. The  performers  in  these  theaters  remain  in  a 
theater  not  more  than  one  week,  and  are  usually  booked 
under  a  contract  which  requires  them  to  pass  from  one 
theater  and  from  one  state  to  another,  taking  with 
them  paraphernalia  and  stage  properties.  The  two  cor- 
porations named  as  defendants  were  booking  agents  for 
the  two  circuits,  securing  performers  to  travel  about  the 
whole  or  part  of  each  circuit,  and,  in  general,  acting  as 
agents  for  the  managers  or  owners. 

The  plaintiff,  which  maintained  offices  in  London, 
Paris,  and  Berlin,  as  well  as  in  New  York,  acted  as  a 
sort  of  clearing  house  between  performers  and  man- 
agers and  as  agents  for  the  former  in  securing  contracts 
and  in  arranging  for  their  entrance  into  the  country, 
the  transportation  of  their  apparatus,  etc. 

It  was  alleged  that  the  defendants  entered  into  a 
combination  in  restraint  of  their  own  business.  The 
eastern  theater  owners  were  not  to  employ  anyone  not 
booked  through  the  eastern  booking  corporation,  which 
was  not  to  act  for  any  theater  which  employed  another 
booking  agent.    They  were  to  procure  the  assent  of  the 


FREEDOM    OF    ACTION  429 

other  theaters  in  the  Keith  circuit  to  the  plan.  All 
were  to  blacklist  performers  who  played  outside  the  two 
circuits,  and  also  blacklist  theaters  that  disregarded  the 
blacklist  of  players.  No  one  was  to  be  employed  who 
had  as  a  representative  any  person  who  obtained  em- 
ployment for  a  performer  outside  the  circuits,  and 
theaters  who  employed  such  performers  were  put  under 
the  ban.  Such  representatives  also  were  blacklisted. 
Similar  allegations  were  made  as  to  the  western  circuit, 
and  it  was  further  alleged  that  the  defendants  black- 
listed the  plaintiff,  sent  out  notices  to  that  effect,  and 
destroyed  his  business. 

The  court  went  at  length  into  the  question  whether 
the  interstate  commerce  features  of  the  defendant's 
business  were  sufficiently  prominent,  and  the  results  of 
their  acts  affected  that  commerce  to  such  a  degree  as  to 
bring  the  matter  within  the  scope  of  the  Sherman  Act; 
the  decision  was  that  the  act  applied. 

The  court  also  held  that  the  combination  was  one  in 
restraint  of  trade,  overruled  a  demurrer  to  the  com- 
plaint and  required  that  an  answer  be  filed. 

Comment.  Anything  which  is,  or  seems  to  be,  a  monopoly 
in  the  United  States  of  America  is  always  condemned. 
Also  compare  the  boycott  as  exercised  by  the  labor  unions 
with  the  blacklist  as  used  by  employers.  What  is  the 
difference  in  principle? 


430  THE    PUBLIC    COXSCIENXE 


judicial  coxstructiox  of  fourteenth 
a:mexdment 

26  Harvaed  Law  Review,  16 

(Justice  Francis  J.  Swayze.) 

A  railroad  company  may  be  required  to  fence  its 
tracks,  to  protect  grade  crossings,  to  stop  trains  at  cer- 
tain stations,  probably  to  check  trains  at  grade  cross- 
ings, to  elevate  its  tracks,  to  build  viaducts  and  tun- 
nels, and  when  necessary  to  change  their  location,  to 
establish  stations,  to  make  connections  with  other 
roads,  to  supply  even  at  a  loss  enough  trains  and  ade- 
quate service,  to  supply  local  switching  service,  but 
not  to  construct  private  switches,  may  be  forbidden  to 
heat  its  cars  in  a  certain  way,  and  may  be  made  liable 
for  damage  by  fire;  whether  these  requirements  are 
justified  under  what  is  called  the  police  power  or  under 
the  right  to  regulate  public  service  corporations,  they 
constitute  a  serious  modification  of  the  right  of  private 
property,  and  their  cumulative  effect  has  been  to  im- 
pose vast  expense  upon  the  companies  and  to  bring 
about  a  conception  of  the  right  of  property  very  differ- 
ent from  that  probably  entertained  by  the  men  who 
framed  the  amendment. 

(Xote  —  For  every  clause  the  decisions  actually  given  may  be 
found  in  Judge  Swayze's  article.) 


FREEDOM    OF    ACTION  431 

Limits  to  Property 

HUDSON  COUNTY  WATER  CO.  v.  McC.\RTER 

209  U.  S.  349 

"  The  limits  set  to  property  by  other  public  interests 
present  themselves  as  a  branch  of  what  is  called  the 
police  power  of  the  State.  The  boundarv*  at  which  the 
conflicting  interests  balance  cannot  be  determined  bj'' 
any  general  formula  in  advance,  but  points  in  the  line. 
or  helping  to  establish  it.  are  fixed  by  decisions  that 
this  or  that  concrete  case  falls  on  the  nearer  or  farther 
side.  For  instance,  the  police  power  may  limit  the 
height  of  buildings,  in  a  city,  without  compensation. 
To  that  extent  it  cuts  dov»-n  what  otherwise  would  be 
the  rights  of  property.  But  if  it  should  attempt  to 
limit  the  height  so  far  as  to  make  an  ordinarv'  building 
lot  wholly  useless,  the  right  of  property*  would  prevail 
over  the  other  public  interest,  and  the  police  power 
would  fail.  To  set  such  a  limit  would  need  compensa- 
tion and  the  power  of  eminent  domain."' 

Mr.  Justice  Hohnes. 

C 077177} ent.  This  is  because  such  limitation  of  height  would 
be  practical  theft.  The  state  may  indeed  take  ariy  prop- 
erty but  only  —  except  in  extraordinary*  circumstances, 
like  war  —  under  condemnation  proceedings  —  "due 
process  of  law  "  —  with  proper  compensation. 


432  THE    PUBLIC    CONSCIENCE 

Franchises 
CHARLES  RIVER  BRIDGE  v.  WARREN  BRIDGE 

11  Peters  (U.  S.)  420,  (1837) 

In  1650,  the  ferry  privilege  across  the  Charles  River 
from  Boston  to  Cambridge  was  granted  to  Harvard 
College.  In  1785,  the  legislature  incorporated  a  com- 
pany to  build  a  bridge,  the  company  taking  tolls  to 
reimburse  itself  and  agreeing  to  pay  Harvard  College 
£200  a  year  for  40  years  to  indemnify  it  for  the  loss  of 
the  ferry  privilege.  Later  an  agreement  was  made  to 
pay  this  sum  for  70  years.  The  bridge  company  rigor- 
ously kept  its  contract ;  but  in  1828,  43  years  after  the 
company  was  incorporated,  the  legislature  incorporated 
another  company  to  build  Warren  Bridge,  taking  tolls 
as  in  the  other  case,  but  eventually  to  become  free 
(which  occurred  in  due  time  and  according  to  agree- 
ment.) In  consequence,  the  franchise  value  of  the 
Charles  River  Bridge  was  destroyed. 

At  the  time  an  injunction  was  sought  to  prevent 
the  building  of  the  Warren  Bridge,  afterwards  general 
relief  from  the  situation. 

The  Supreme  Court  of  Massachusetts  dismissed  the 
complaint  and  the  case  was  taken  to  the  Supreme 
Court  of  the  United  States,  where  this  judgment  was 
ajfirmed. 

The  Court  held  that  the  object  and  end  of  all  gov- 
ernment is  to  promote  the  happiness  and  well  being 
of    the    community.    Government    therefore    cannot 


FREEDOM    OF    ACTION  433 

hamper  itself  in  dealing  with  the  future.  It  cannot 
restrain  for  70  years  the  natural  growth  of  the  com- 
munity. The  continued  existence  of  a  government 
would  be  of  no  great  value,  if,  by  implications  and 
presumptions,  it  was  disarmed  of  the  powers  necessary 
to  accomplish  the  ends  of  its  creation. 

Comment.  Such  grants  then,  it  would  appear,  if  made 
with  a  proviso,  would  have  less  an  appearance  of  injus- 
tice. It  does  not  tend  to  make  men  keep  their  contracts 
inviolably  to  realize  that  the  government  will  break  its 
contracts  without  compunction  and  without  giving 
damages.  Since  it  is  evident  that  one  generation  cannot 
bind  its  successor  in  fact,  it  would  be  well  that  no  prom- 
ises should  be  made  by  a  government  without  the  clear 
declaration  that  those  promises  might  be  repudiated 
later;  and  it  would  be  well  also  to  have  courts  pass  upon 
the  question  whether  damages  would  lie  for  such  re- 
pudiated contracts. 


BUSH  V.  NEW  YORK  LIFE  INSURANCE  CO. 

135  App.  Div.  N.  Y.  447  (1909) 

By  a  statute  of  the  State  of  New  York  a  limit  was 
put  upon  the  amount  oi  insurance  which  could  be 
written  by  all  life  insurance  companies  except  "  a  cor- 
poration more  than  one-half  of  the  outstanding  insur- 
ance of  which  on  December  31st,  1905,  consisted  of 
industrial  insurance."  This  would  limit  the  business 
of  all  the  large  life  insurance  companies  except  the 
Metropolitan. 


434  THE    PUBLIC    CONSCIENCE 

The  details  of  this  case  are  not  important  in  this 
connection.  The  statute  was  held  to  be  constitutional 
although  that  question  did  not  arise  in  connection  with 
the  case. 

Justice  Ingraham  said :  "  The  claim  is  made  that  in 
some  way  the  State  of  New  York  is  prohibited  from 
restricting  corporations  that  it  has  created  as  to  the 
amount  of  new  business  which  they  shall  engage  in, 
or  limiting  them  as  to  the  business  in  which  they  can 
engage.  I  suppose  that  there  could  be  no  question 
as  to  the  power  of  the  State  to  grant  such  power  to 
corporations  which  it  organized  as  it  pleased,  or  that 
under  the  reservation  of  power  by  the  present  Coji- 
stitution  (Art.  8,  Sec.  1)  the  State  had  the  right  to 
amend  or  modify  the  charter  of  any  corporation,  or 
repeal  or  annul  said  charter  altogether;  and  the  fact 
that  either  by  the  original  charter  or  an  amendment 
to  the  charter  of  a  corporation  such  corporation  was 
given  greater  power  than  that  given  to  other  cor- 
porations, or  that  the  powers  of  one  corporation  were 
restricted  so  that  it  had  the  right  to  exercise  less  power 
than  other  corporations  organized  by  the  State,  was 
not  a  violation  of  any  Constitutional  right  assured  to 
any  of  the  corporations  by  either  the  Constitution  of 
this  State  or  the  Constitution  of  the  United  States." 

Comment.  Note  that  the  section  96  of  the  Insurance  Law 
is  not  considered  to  be  a  violation  of  sections  of  the  Con- 
stitution of  New  York  forbidding  the  passing  of  private 
bills  —  "granting  to  any  private  corporation,  associa- 
tion or  individual  any  exclusive  privilege,  immunity  or 


FREEDOM    OF    ACTION  435 

franchise  whatever."  It  was  held  that  section  96  of  the 
Insurance  Law  was  not  a  private  bill.  Nevertheless  it 
is  plain  that  there  was  discrimination  between  corpora- 
tions of  a  kind  which  could  not  be  tolerated  under  the 
Fifth  Amendment  to  the  Constitution  of  the  United  States 
between  individuals.  It  is  interesting  to  note  also  that 
this  section  of  the  Insurance  Law  has  been  considerably- 
modified  and  its  rigors  softened. 


SLAUGHTER  HOUSE   CASES. 
Supreme  Court  of  the  United  States,  1872 

(83  u.  S.,  36.) 

The  legislature  of  Louisiana  in  March,  1869,  passed 
an  act  granting  to  a  corporation,  created  by  it,  the 
exclusive  right,  for  twenty-five  years,  tO'  have  and 
maintain  slaughter  houses,  landings  for  cattle,  etc., 
within  a  large  district,  containing  1154  square  miles, 
including  the  city  of  New  Orleans  and  having  a  large 
population.  The  act  further  prohibited  all  other 
persons  within  the  district  from  having  or  maintaining 
slaughter  houses,  required  all  cattle  to  be  brought  to 
this  one  and  exacted  certain  fees,  etc. 

The  ground  of  the  opposition  to  the  slaughter  house 
company's  pretensions  was  that  the  act  of  the  legis- 
lature made  a  monopoly  and  was  a  violation  of  the 
most  important  provisions  of  the  Thirteenth  and  Four- 
teenth Amendments  to  the  Federal  Constitution. 

When  the  cases  (there  were  several  of  them)  finally 
reached  the  Supreme  Court  of  the  United  States,  Mr. 


436  THE    PUBLIC    CONSCIENCE 

Justice  Miller  delivered  the  opinion  which  held,  1. 
That  this  grant  of  exclusive  right  or  privilege,  guarded 
by  proper  limitation  of  the  prices  to  be  charged,  and 
imposing  the  duty  of  providing  ample  conveniences, 
with  permission  to  all  owners  of  stock  to  land,  and  to 
all  butchers  to  slaughter  at  those  places,  was  a  police 
regulation  for  the  health  and  comfort  of  the  people 
and  entirely  within  the  constitution  of  the  State  and 
Nation. 

2.  Exclusive  rights  have  always  been  granted  when 
the  purpose  held  in  view  was  the  public  good. 

3.  The  main  purpose  of  the  amendments  cited  was 
the  abolition  of  African  slavery,  but  equally  to  re- 
strain Mexican  peonage  or  the  Chinese  Coolie  trade. 

4.  Another  purpose  was  to  protect  from  the  hostile 
legislation  of  the  states,  the  privileges  and  immunities 
of  citizens  of  the  United  States  as  distinguished  from 
the  privileges  and  immunities  of  citizens  of  the  several 
states.  Those  appertaining  to  citizens  of  the  United 
States  arise  out  of  the  nature  and  essential  character 
of  the  national  government,  the  provisions  of  its  Con- 
stitution, or  its  laws  and  treaties  made  in  pursuance 
thereof;  and  it  is  these  which  are  placed  under  the 
protection  of  Congress  by  this  clause  of  the  Fourteenth 
Amendment. 

Comment.  Franchises,  though  granting  exclusive  rights  to 
the  detriment  of  many  individuals,  are  always  upheld  if 
believed  to  be  in  the  public  interest. 


FREEDOM    OF    ACTION  437 


Eminent  Domain 

American  Digest,  Century  Edition, 
VOL.  18,  p.  755,  FF. 

Eminent  domain  is  the  rightful  authority  which 
exists  in  every  sovereign  to  control  and  regulate  those 
rights  of  a  public  nature  which  pertain  to  its  citizens 
in  common,  and  to  appropriate  and  control  individual 
property  for  the  public  benefit  as  the  public  safety, 
necessity,  convenience  and  welfare  may  demand. 
People  V.  Humphrey,  23  Mich.  471. 

The  power  of  eminent  domain  is  the  right  of  the 
sovereign,  without  the  consent  of  the  owner,  when 
necessary,  to  make  private  property  subservient  to  the 
public  welfare. 
Grevy  v.  Cincinnati,  W.  &  Z.  R.  Co.,  4  Ohio  St.  308. 

A  state  legislature  cannot  authorize  the  taking  of 
private  property  for  a  merely  private  use,  even  upon 
making  compensation.  The  doctrine  of  eminent  do- 
main allows  private  property  to  be  appropriated  to 
public  use  upon  compensation  being  made  therefor, 
but  it  cannot  be  taken  for  strictly  private  purposes 
without  the  consent  of  the  owner  whether  compen- 
sation is  made  or  not.  The  assertion  of  a  right  on  the 
part  of  the  legislature  to  take  the  property  of  one 
citizen  and  transfer  it  to  another,  even  for  a  full  com- 
pensation, where  the  public  interest  is  not  promoted 
thereby,  is  claiming  a  despotic  power,  and  one  incon- 


438  THE    PUBLIC    CONSCIENCE 

sistent  with   every   just   principle   and   fundamental 
maxim  of  a  free  government. 

(Cited  from  p.   797  where  all  the  references  are 
given  from  which  this  digest  was  made). 


IN   RE  DEBS. 

158  U.  S.  564  (1894) 

This  is  the  case  in  which  Eugene  V.  Debs  and  others 
were  charged  with  a  violation  of  the  Interstate  Com- 
merce Act  and  probably  of  the  Sherman  Anti-Trust 
Act  in  that  by  causing  strikes  and  boycotts,  particu- 
larly against  the  Pullman  Palace  Car  Co.,  they  ob- 
structed the  mails  and  endeavored  to  get  possession 
of  interstate  business.  They  were  charged  with  in- 
timidating other  employees,  assaulting  workmen, 
wrecking  engines,  etc.  The  business  of  the  stock 
yards  was  seriously  interfered  with,  thus  imperiling 
the  food  supply  of  the  whole  country. 

An  injunction  was  issued  by  the  Circuit  Court  of 
the  United  States  against  the  perpetration  of  the 
above  acts;  and  even  against  persuasion.  Four  per- 
sons, Debs  et  al.,  were  found  guilty  of  contempt  of 
court  and  sentenced  to  from  three  to  six  months  im- 
prisonment. They  were  committed  to  jail  and  on 
the  14th  of  January,  1895,  applied  for  a  writ  of  habeas 
corpus,  which  is  the  matter  considered  in  this  place. 
This  writ  was  denied.    Mr.  Justice  Brewer  delivered 


FREEDOM    OF    ACTION  439 

the  opinion  of  the  court.  He  said  that  there  were  two 
questions  of  importance  to  be  considered.  The  first: 
Are  the  relations  of  the  general  government  to  inter- 
state commerce  and  the  transportation  of  the  mails 
such  as  authorize  a  direct  interference  to  prevent  a 
forcible  obstruction  thereof? 

The  second :  —  If  authority  exists,  as  authority  in 
governmental  affairs  implies  both  power  and  duty, 
has  a  court  of  equity  jurisdiction  to  issue  an  injunction 
in  aid  of  the  performance  of  such  duty? 

The  summing  up  is  alone  given : 

"  We  hold  that  the  government  of  the  United  States 
is  one  having  jurisdiction  over  every  foot  of  soil  within 
its  territory,  and  acting  directly  upon  each  citizen; 
that  while  it  is  a  government  of  enumerated  powers, 
it  has  within  the  limits  of  those  powers  all  the  attri- 
butes of  sovereignty;  that  to  it  is  committed  power  over 
interstate  commerce  and  the  transmission  of  the  mails ; 
that  the  powers  thus  conferred  upon  the  national 
government  are  not  dormant,  but  have  been  assumed 
and  put  into  practical  exercise  by  the  legislation  of 
Congress;  that  in  the  exercise  of  those  powers  it  is 
competent  for  the  nation  to  remove  all  obstructions 
upon  highways,  natural  or  artificial,  to  the  passage 
of  interstate  commerce  or  the  carrying  of  the  mails; 
that  while  it  may  be  competent  for  the  government 
(through  the  executive  branch  and  in  the  use  of  the 
entire  executive  power  of  the  nation)  to  forcibly  re- 
move all  such  obstructions,  it  is  equally  within  its 
competency  to  appeal  to  the  civil  courts  for  an  inquiry 


440  THE    PUBLIC    CONSCIENCE 

and  determination  as  to  the  existence  and  character 
of  any  alleged  obstructions;  that  the  jurisdiction  of 
courts  to  interfere  in  such  matters  by  injunction  is 
one  recognized  from  ancient  times  and  by  indubitable 
authority;  that  such  jurisdiction  is  not  ousted  by  the 
fact  that  the  obstructions  are  accompanied  by  or  con- 
sist of  acts  in  themselves  violations  of  the  criminal 
law;  that  the  proceeding  by  injunction  is  of  a  civil 
character,  and  may  be  enforced  by  proceedings  in  con- 
tempt; that  such  proceedings  are  not  in  execution 
of  the  criminal  laws  of  the  land;  that  the  penalty  for 
a  violation  of  injunction  is  no  substitute  for  and  no 
defense  to  a  prosecution  for  any  criminal  offenses  com- 
mitted in  the  course  of  such  violation;  that  the  com- 
plaint filed  in  this  case  clearly  showed  an  existing 
obstruction  of  artificial  commerce  and  the  transmission 
of  the  mail  —  an  obstruction  not  only  temporarily 
existing,  but  threatening  to  continue ;  that  under  such 
complaint  the  Circuit  Court  had  power  to  issue  its 
process  of  injunction;  that  it  having  been  issued  and 
served  on  these  defendants,  the  Circuit  Court  had 
authority  to  inquire  whether  its  orders  had  been  dis- 
obeyed, and  when  it  found  that  they  had  been,  then 
to  proceed  under  section  725,  Rev.  Stat.,  which  grants 
power  '  to  punish  by  fine  or  imprisonment  —  disobe- 
dience —  by  any  party  or  other  person,  to  any  lawful 
writ,  process,  order,  rule,  decree,  or  command,'  and 
enter  the  order  of  punishment  complained  of;  and, 
finally,  that,  the  Circuit  Court,  having  full  jurisdiction 
in  the  premises,  its  finding  of  the  fact  of  disobedience 


FREEDOM    OF    ACTION  441 

is  not  open  to  review  on  habeas  corpus  in  this  or  any- 
other  court.  .  .  . 
The  petition  for  a  writ  of  habeas  corpus  is  Denied." 

Comment.  One  of  the  defendants  testified  that  it  was  not 
the  soldiers  or  the  old  brotherhoods  that  ended  the  strike 
but  the  United  States  courts.  In  taking  the  leaders  from 
the  scene  of  action  the  strike  was  broken.  The  great 
body  of  the  strikers  never  intended  rebellion  and  when 
the  position  of  the  courts  was  made  plain  they  yielded. 
The  right  of  any  laborer  to  quit  work  was  not  chal- 
lenged. 


Public  House 

REX  V.  IVINS, 

Oxford  Circuit,  1835 

(Reported  7  Car.  &  Payne,  213.    Beale,  43,  3d  ed.) 

Mr.  Samuel  Probyn  Williams  went  to  the  Bell  Inn 
at  Chepstow  on  the  night  of  Sunday,  the  14th  of 
April,  on  horseback.  The  defendant  and  his  wife  both 
refused  him  admittance. 

Godson,  for  the  defendant,  admitted  that  an  action 
might  be  brought  by  Mr.  Williams  personally,  as  an 
inn-keeper  has  no  right  to  refuse  admittance  to  any 
sober,  decent  person ;  but  he  objected  to  an  indictment. 

Coleridge,  J.  (in  summing  up).  "The  facts  in  this 
case  do  not  appear  to  be  much  in  dispute;  and  though 
I  do  not  recollect  to  have  ever  heard  of  such  an  indict- 
ment having  been  tried  before,  the  law  applicable  to 


442  THE    PUBLIC    CONSCIENCE 

this  case  is  this :  —  that  an  indictment  lies  against  an. 
inn-keeper  who  refuses  to  receive  a  guest,  he  having  at 
the  time  room  in  his  house;  and  either  the  price  of 
the  guest's  entertainment  being  tendered  to  him,  or 
such  circumstances  occurring  as  will  dispense  with  that 
tender.  The  law  is  grounded  in  good  sense.  The  inn- 
keeper is  not  to  select  his  guests.  He  has  no  right  to 
say  to  one,  you  shall  come  into  my  inn,  and  to  another, 
you  shall  not,  as  every  one  coming  and  conducting 
himself  in  a  proper  manner  has  a  right  to  be  received  ; 
and  for  this  purpose  inn-keepers  are  a  sort  of  public 
servants,  they  having  in  return  a  kind  of  privilege  of 
entertaining  travelers  and  supplying  them  with  what 
they  want."  It  was  objected  in  this  case  that  Mr. 
Williams  conducted  himself  improperly  and  at  a  late 
hour  of  night.  He  also  was  asked  his  name  and  resi- 
dence and  after  giving  these  added  "  and  be  damned 
to  you."  The  court  and  jury  held  that  he  had  not 
been  guilty  of  such  misconduct  as  would  warrant  his 
being  excluded  from  the  house. 
Verdict  Guilty  —  20  shillings  fine. 

Comment.  It  is  of  little  consequence  to  us,  for  our  pur- 
pose, what  form  of  proceeding  was  taken  against  the  inn- 
keeper, whether  he  was  indicted  or  merely  sued  for 
damages,  except  as  it  is  clear  from  the  sustaining  of  the 
indictment  that  the  inn-keeper  offended  against  the  gen- 
eral public  as  well  as  against  the  plaintiff  Williams.  For 
reasons  given  in  Justice  Coleridge's  opinion  it  is  evident 
that  the  inn-keeper  is  strictly  limited  in  his  liberty  to 
use  his  own  property. 


FREEDOM    OF    ACTION  443 

Contract  (Labor  Unions) 

ADAIR  V.  UNITED  STATES 

208  U.  S.  161  (1907) 

The  charge  was  that  William  Adair,  agent  of  the 
Louisville  and  Nashville  Railroad  Company,  in  dis- 
charging 0.  B.  Coppage  in  October,  1906,  unlawfully 
and  unjustly  discriminated  against  him  because  of  his 
membership  in  the  Order  of  Locomotive  Firemen,  and 
thereby  violated  a  statute  of  the  United  States  ex- 
pressly contrived  to  prevent  such  discrimination. 

The  question  before  the  court  was  "  May  Congress 
make  it  a  criminal  offense  against  the  United  States 
—  as  by  the  10th  section  of  the  act  of  1898  it  does  — 
for  an  agent  or  officer  of  an  interstate  carrier,  having 
full  authority  in  the  premises  for  the  carrier,  to  dis- 
charge an  employe  from  service  simply  because  of  his 
membership  in  a  labor  organization?  " 

Does  this  conflict  with  the  Fifth  Amendment  of 
the  Constitution  declaring  that  no  person  shall  be 
deprived  of  liberty  or  property  without  due  process 
of  law?  "  In  our  opinion  that  section  is  an  invasion 
of  the  personal  liberty,  as  well  as  of  the  right  of 
property,  guaranteed  by  that  Amendment.  Such 
liberty  and  right  embraces  the  right  to  make  contracts 
for  the  purchase  of  the  labor  of  others  and  equally 
the  right  to  make  contracts  for  the  sale  of  one's  own 
labor;  each  right,  however,  being  subject  to  the  funda- 


444  THE    PUBLIC    CONSCIENCE 

mental  condition  that  no  contract,  whatever  its  sub- 
ject matter,  can  be  sustained  which  the  law,  upon 
reasonable  grounds,  forbids  as  inconsistent  with  the 
public  interest  or  as  hurtful  to  the  pubhc  order  or  as 
detrimental  to  the  common  good." 

Adair  was  privileged  to  serve  his  employer  as  best 
he  could  so  long  as  he  did  nothing  prejudicial  to  the 
public  interest.  Cooley  in  his  Treatise  on  Torts,  p. 
278,  says  "  It  is  a  part  of  every  man's  civil  right  that 
he  be  left  at  liberty  to  refuse  business  relations  with 
any  person  whomsoever,  whether  the  refusal  rests  upon 
reason,  or  is  the  result  of  whim,  caprice,  prejudice  or 
malice.  With  his  reasons  neither  the  public  nor  third 
persons  have  any  legal  concern.  It  is  also  his  right 
to  have  business  relations  with  any  one  with  whom 
he  may  make  contracts,  and  if  he  is  wrongfully  de- 
prived of  this  right  by  others,  he  is  entitled  to  redress." 

An  employer  has  the  same  right  to  prescribe  terms 
on  which  he  will  employ  one  to  labor  as  an  employee 
has  to  prescribe  those  on  which  he  will  sell  his  labor, 
and  any  legislation  which  disturbs  this  equality  is  an 
arbitrary  and  unjustifiable  interference  with  liberty 
of  contract. 

The  Louisville  &  Nashville  R.  R.  Co.  had  been 
held  guilty  in  the  lower  court.  The  Supreme  Court 
set  aside  this  verdict  and  dismissed  the  case. 

There  were  interesting  and  important  dissenting 
opinions  of  Justices  McKenna  and  Holmes. 

Mr.  Justice  Holmes  granted  that  this  case  presents 
a  very  limited  interference  with  freedom  of  contract. 


FREEDOM    OF    ACTION  445 

"  It  does  not  require  the  carriers  to  employ  anyone. 
It  does  not  forbid  them  to  refuse  to  employ  anyone 
for  any  reason  they  deem  good,  even  where  the  notion 
of  a  choice  of  persons  is  a  fiction  and  wholesale  em- 
ployment is  necessary  upon  general  principles  that  it 
might  be  proper  to  control.  The  section  simply  pro- 
hibits the  more  powerful  party  to  exact  certain  under- 
takings, or  to  threaten  dismissal  or  unjustly  dis- 
criminate on  certain  grounds  against  those  already 
employed.  I  hardly  can  suppose  that  the  grounds  on 
which  a  contract  lawfully  may  be  made  to  end  are 
less  open  to  regulation  than  other  terms.  So  I  turn 
to  the  general  question  whether  employment  can  be 
regulated  at  all.  I  confess  that  I  think  that  the  right 
to  make  contracts  at  will  that  has  been  derived  from 
the  word  liberty  in  the  amendments  has  been  stretched 
to  its  extreme  by  the  decisions;  but  they  agree  that 
sometimes  the  right  may  be  restrained.  Where  there 
is,  or  generally  is  believed  to  be,  an  important  ground 
of  public  policy  for  restraint  the  constitution  does  not 
forbid  it,  whether  this  court  agrees  or  disagrees  with 
the  policy  pursued. 

Comment.  A  familiar  type  of  condemnation  of  interfer- 
ence with  the  hberty  of  contract;  but  with  the  saving 
clause  that  such  liberty  must  not  interfere  with  the  pub- 
lic welfare.  It  would  only  need  then  for  the  court  to  be- 
come convinced  that  the  action  of  the  railroad  company 
was  an  infringement  of  the  liberty  of  contract  for  it  to 
reverse  this  opinion  upon  the  same  principle  which  gave 
rise  to  this  decision. 


446  THE    PUBLIC    CONSCIENCE 


UNITED  SHOE  MACHINERY  CO.  v.  LA 
CHAPELLE 

Supreme  Judicial  Court  of  Massachusetts,  1912 

(Reported  99  Northeastern  Reporter,  289.    112  Bui.  Lab.  St.,  56.) 

The  United  Shoe  Machinery  Co.  had  made  a  con- 
tract with  an  inventor,  one  La  Chapelle,  by  the  terms 
of  which  the  latter  was  to  give  his  entire  services  to 
the  company  under  a  contract  terminable  at  the  will 
of  either  party.  One  paragraph  of  the  contract  bound 
La  Chapelle  to  assign  to  the  company  any  and  all 
inventions  or  patents  which  he  should  make  during 
the  continuance  of  the  contract  and  for  10  years  there- 
after, and  for  a  like  period  not  to  engage  in  any  similar 
business.  The  contract  was  continued  for  about  three 
years,  ceasing  in  1909.  After  that  time  La  Chapelle 
took  out  a  patent  for  some  improvement  in  shoe  ma- 
chinery and  refused  to  assign  the  same  to  the  com- 
pany, whereupon  it  brought  suit  to  compel  the  assign- 
ment. A  decree  was  awarded  the  company  in  the 
superior  court  of  Suffolk  County,  and  La  Chapelle 
brought  exceptions,  which  were  sustained  in  the  su- 
preme judicial  court  on  grounds  that  appear  in  the 
concluding  paragraphs  of  the  opinion  of  the  court, 
which  was  delivered  by  Judge  Rugg. 

It  was  stated  first  that  on  account  of  the  fact  that 
the  case  was  before  the  court  on  exceptions  certain 
broad  issues  could  not  be  considered,  as  whether  the 


FREEDOM    OF    ACTION  447 

contract  was  unenforceable  because  unconscionable, 
or  whether  the  plaintiff  in  the  conduct  of  its  business 
formed  a  monopoly  at  common  law. 

The  court  dismissed  the  claim  made  by  La  Chapelle 
that  his  contract  was  made  under  duress,  and  also  all 
question  as  to  the  equivalence  of  the  value  of  services 
rendered  and  wages  received,  as  irrelevant. 

The  plaintiff  company  was  a  manufacturer  of  shoe 
machinery  undertaking  to  retain  control  of  its  product 
and  to  restrict  competition  by  selling  under  an  agree- 
ment that  the  purchaser  should  use  only  machinery 
purchased  from  the  company  in  any  plant  where  its 
machinery  was  used. 

The  contract  between  the  plaintiff  and  defendant 
did  not  relate  primarily  to  interstate  commerce.  It 
was  for  labor  and  skill  alone  —  one  of  many  similar 
contracts  with  individuals,  enough  to  constitute  a  prac- 
tical monopoly  of  skill  in  that  department. 

The  provision  of  the  contract  here  sought  to  be 
enforced  that  for  10  years  after  its  termination  every 
invention  shall  be  assigned  to  the  plaintiff  savors  of 
restraint  of  trade.  It  would  choke  off  the  inventive 
capacity  of  the  defendant  for  a  period  so  long  after 
his  employment  ceased  that  his  usefulness  to  himself 
or  to  any  competitor  would  be  extinguished  in  most 
instances.  When  this  contract  is  multiplied  by  sub- 
stantially all  like  inventors  in  the  country,  its  char- 
acter as  aiding  the  combination  is  too  clear  to  require 
further  discussion.  A  single  contract  for  the  employ- 
ment in  labor  of  one  person  is  far  away  from  inter- 


448  THE    PUBLIC    CONSCIENCE 

state  commerce.  But  when  it  is  alleged  La  Chapelle 
undertook  to  show  that  his  contract  had  been 
made  under  duress,  the  court  held  that  this  was  not 
sufficiently  shown,  saying,  "  Whatever  may  be  said  as 
to  the  illusory  character  of  freedom  of  contract  grow- 
ing out  of  economic  conditions,  the  defendant  utterly 
fails  to  show  that  he  acted  under  any  element  of 
duress." 

A  question  was  raised  as  to  the  equivalence  of  the 
value  of  the  services  rendered  and  wages  received  dur- 
ing the  continuance  of  the  contract,  as  to  which  Judge 
Rugg  said:  — 

"  It  was  of  no  consequence  whether  the  inventions 
assigned  by  the  defendant  to  the  plaintiff  during  the 
term  of  his  employment  were  equivalent  in  value  to 
his  wages.  It  was  an  implied  condition  of  his  contract 
that  he  should  do  his  best.  The  value  of  his  work  to 
the  plaintiff  had  no  bearing  upon  any  issue  raised." 

The  plaintiff  company  was  a  manufacturer  of  shoe 
machinery,  undertaking  to  retain  control  of  its  product 
and  to  restrict  competition  by  selling  under  an  agree- 
ment that  the  purchaser  would  use  only  machinery 
purchased  from  the  company  in  any  plant  where  its 
machinery  was  used.  Various  questions  of  monopoly 
and  the  right  of  the  owners  of  patents  were  discussed, 
and  also  the  application  of  the  federal  anti-trust  act 
to  such  a  situation  as  was  developed.  The  question 
of  contracts  in  aid  of  unlawful  monopoly  of  interstate 
trade  or  commerce  was  discussed,  with  numerous  cita- 
tions, following  which  the  opinion  concluded: — 


FREEDOM    OF    ACTION  449 

"  The  contract  which  incidentally,  collaterally  or 
remotely  affects  interstate  commerce,  although  in- 
directly in  furtherance  of  and  advantageous  to  inter- 
state commerce,  is  not  within  the  scope  of  the  act.  It 
must  appear  that  the  effect  of  such  a  contract  is  direct 
and  substantial. 

The  contract  between  the  plaintiff  and  defendant 
did  not  relate  primarily  to  interstate  commerce.  It 
was  for  labor  and  skill  alone.  It  had  nothing  to  do 
with  the  transportation  of  goods.  But  taking  the 
averments  of  the  answer  and  the  proffered  evidence 
to  be  true,  as  we  are  bound  to  do  on  this  record,  it  was 
made  by  one  who  had  a  monopoly  of  one  branch  of 
trade;  it  was  one  of  many  similar  contracts  with  indi- 
viduals enough  to  constitute  a  practical  monopoly  of 
skill  in  that  department;  it  was  a  necessary  link  in  a 
chain  of  contracts  essential  to  the  maintenance  and 
preservation  of  monopoly  in  interstate  trade  which  had 
been  established  by  the  plaintiff. 

Such  a  case  is  within  the  principle  announced  in 
Continental  Wall  Paper  Co.  v.  Voight  &  Sons  Co., 
212  U.  S.  227,  261,  29  Sup.  Ct.  280,  that  the  plaintiff 
comes  into  a  court  of  equity  for  aid  in  enforcing  a 
contract  which  according  to  the  allegation  and  offer 
of  proof  was  intended  to  be  and  was  in  fact  an  essen- 
tial part  of  an  illegal  scheme.  The  words  of  the 
court  in  Swift  &  Co.  v.  U.  S.,  196  U.  S.  375,  at  396, 
25  Sup.  Ct.  276,  at  279,  are  applicable:  "The  scheme 
as  a  whole  seems  to  us  to  be  within  reach  of  the  law. 
The  constituent  elements,  as  we  have  stated  them, 


450  THE    PUBLIC    CONSCIENCE 

are  enough  to  give  the  scheme  a  body,  and,  for  all 
that  we  can  say,  to  accomplish  it.  Moreover,  what- 
ever we  may  think  of  them  separately  when  we  take 
them  up  as  distinct  charges,  they  are  alleged  suffi- 
ciently as  elements  of  the  scheme.  It  is  suggested 
that  the  several  acts  charged  are  lawful,  and  that 
intent  can  make  no  difference.  But  they  are  bound 
together  as  the  parts  of  a  single  plan.  The  plan 
may  make  the  parts  unlawful.  {Aikens  v.  Wisconsin, 
195  U.  S.  194,  206  (25  Sup.  Ct.  3).  (See  Bui.  No.  57,  p. 
678).  The  provision  of  the  contract  here  sought  to  be 
enforced  that  for  10  years  after  its  termination  every 
invention  shall  be  assigned  to  the  plaintiff  savors  of  re- 
straint of  trade.  It  projects  itself  so  far  beyond  the 
period  of  actual  employment  and  payment  of  wages 
that  it  appears  to  be  in  aid  of  the  unlawful  combina- 
tion. It  would  choke  the  inventive  capacity  of  the 
defendant  for  a  period  so  long  after  his  employment 
ceased  that  his  usefulness  to  himself  or  to  any  com- 
petitor would  be  extinguished  in  most  instances. 
When  this  contract  is  multiplied  by  substantially  all 
like  inventors  in  the  country,  its  character  as  aiding 
the  combination  is  too  clear  to  require  further  dis- 
cussion. A  single  contract  for  the  employment  in 
labor  of  one  person  is  far  away  from  interstate  com- 
merce. But  when  it  is  alleged  that  it  is  one  among 
others  with  90  per  cent  of  all  those  skilled  in  a  par- 
ticular manufacture,  and  that  that  kind  of  manufac- 
ture is  controlled  by  a  combination  formed  of  many 
previously  competing  persons  which  monopolizes  all 


FREEDOM    OF    ACTION  451 

or  substantially  all  interstate  commerce  of  that  kind, 
the  single  contract  for  labor  loses  its  individual  aspect 
in  the  larger  relation  it  bears  to  the  monopoly  in  inter- 
state commerce.  As  a  single  incident  it  may  be  harm- 
less. As  an  integral  part  of  an  unlawful  scheme  for 
monopolizing  commerce  between  the  states  which  can- 
not be  perpetuated  successfully  without  contracts  of 
like  tenor  with  all  practicing  a  similar  craft,  it  par- 
takes of  the  illegality  of  the  scheme. 

Comment.  It  is  interesting  to  note  the  reference  made  to 
what  has  been  said  (by  courts)  about  the  "  illusory  char- 
acter of  freedom  of  contract  growing  out  of  economic 
conditions."  The  action  of  the  Shoe  Machinery  Com- 
pany was  found  to  be  in  restraint  of  trade,  and  the  inter- 
est of  the  public  demands  that  the  contract  be  annulled. 
Again  it  is  indifferent  for  our  purposes  whether  the 
court  decided  correctly  or  not  as  to  the  facts.  The  prin- 
ciple is  evident. 


Property  Rights  in  Means  of  Livelihood 

TERRY  V.  McDANIELL 

Tennessee,  1899 

(103  Tenn.,  415.    Milbum's  Curious  Cases,  327./ 

This  is  a  case  where  a  barber  instituted  an  action 
of  replevin  to  secure  the  tools  of  his  trade  —  in  this 
case  a  barber's  chair,  a  looking  glass  and  a  map  of 
the  world! 


452  THE    PUBLIC    CONSCIENCE 

Decisions  of  the  several  states  are  by  no  means  uni- 
form as  to  who  may  be  classed  as  mechanics  and  what 
may  be  treated  as  mechanics'  tools.  In  Michigan  a 
dentist  is  a  mechanic,  but  in  Mississippi  he  is  not.  A 
pool  table  in  a  saloon  is  held  not  to  be  a  tool,  upon 
the  ground  that  the  saloon  could  run  without  a  pool 
table  and  a  pool  table  could  run  without  a  saloon,  but 
not  very  successfully!  In  Illinois  it  was  held  that  a 
piano  was  a  tool  necessary  to  a  music  teacher.  In 
New  Hampshire  that  a  mirror  was  absolutely  neces- 
sary to  the  occupation  of  a  milliner.  In  Vermont,  it 
is  expressly  decided  that  a  barber's  chair  is  exempt 
as  a  tool.  (Allen  v.  Thompson,  45  Vt.  172.)  And  in 
Texas,  that  a  chair,  mirror  and  table  are  barber's  tools. 
(Fore  v.  Cooper,  34  S.  W.  Rep.  341.) 

Comment.  The  significance  of  all  such  cases  is  that  in- 
terference with  the  means  of  livelihood  cannot  be  main- 
tained. Courts  uniformly  decide  that  the  things  which 
are  necessary  for  the  carrying  on  of  a  trade  cannot  be 
made  the  subject  of  execution.  The  only  thing  to  be 
established  is  that  the  articles  in  question  are  truly  tools. 


Liberty  —  Trade 

GEER  V.  CONNECTICUT 

U.  S.  Supreme  Court,  1896  (161  U.  S.  519) 

The  defendant  had  killed  game  birds  in  the  open 
season  in  a  perfectly  legitimate  manner  in  Connecticut. 
He  had  not  shipped  them  beyond  the  borders  of  the 


FREEDOM    OF    ACTION  453 

state,  which  is  contrary  to  the  statute;  but  he  had 
had  them  in  possession  for  that  purpose.  And  it  was 
decided  by  various  courts  and  finally  by  this  one,  that 
this  was  an  offense,  contrary  to  the  statute,  and  that 
the  defendant  had  been  properly  convicted  in  the 
lower  court.  The  statute  does  not  conflict  with  inter- 
state commerce  laws. 

Justices  Field  and  Harlan  wrote  dissenting  opinions. 

White,  C.  J.,  after  giving  a  resume  of  the  "  law  of 
nature  "  with  reference  to  the  taking  of  wild  animals, 
said  that  while  in  feudal  as  well  as  ancient  law  the 
right  to  acquire  animals  ferae  naturae  by  possession 
was  recognized,  this  right  was  subject  to  governmental 
authority  and  control.  Pothier,  in  his  treatise  on 
Property  says,  "  In  France  as  well  as  in  all  other  civi- 
lized countries  of  Europe,  the  civil  law  has  restrained 
the  liberty  which  the  pure  law  of  nature  gave  to  every 
one  to  capture  animals  who  .  .  .  belong  to  no  one 
in  particular,"  etc. 

Blackstone  (2  Bl.  Com.  1  and  12)  in  a  famous  pas- 
sage has  noted  that  there  are  some  few  things  which 
"  belong  to  the  first  occupant  during  the  time  he  occu- 
pies them  and  no  longer.  Such  things  among  others 
are  light,  air  and  water,"  and  he  may  have  a  qualified 
property  in  wild  animals.  "  But  it  follows  from  the 
very  end  and  constitution  of  society  that  this  natural 
right  as  well  as  many  others  belonging  to  a  man  as  an 
individual  may  be  restrained  by  positive  laws  enacted 
for  reasons  of  state  or  for  the  supposed  benefit  of  the 
community." 


454  THE    PUBLIC    CONSCIENCE 

The  Chief  Justice  further  said,  "  The  adjudicated 
cases  recognizing  the  right  of  the  States  to  control  and 
regulate  the  common  property  in  game  are  numerous. 
The  power  of  the  State  of  Virginia  to  prohibit  citizens 
of  other  states  from  planting  oysters  within  the  tide 
waters  of  that  State  was  upheld  by  this  court.  The 
authority  of  the  State  of  Massachusetts  to  control  and 
regulate  the  catching  of  fish  within  the  bays  of  that 
State  was  also  maintained,  etc." 

"  The  foregoing  analysis  of  the  principles  upon 
which  alone  rests  the  right  of  an  individual  to  acquire 
a  qualified  ownership  in  game,  and  the  power  of  the 
State,  deduced  therefrom,  to  control  such  ownership 
for  the  common  benefit,  clearly  demonstrates  the 
validity  of  the  statute  of  the  State  of  Connecticut 
here  in  controversy." 


IV.    INTERFERENCE    WITH    FREEDOM 
IN    PERSONALITY 

Speech,  New  York  Times,  April  21st,  1916. 

Emma  Goldman  was  sentenced  in  Special  Sessions, 
April  20th,  to  serve  fifteen  days  in  the  workhouse  for 
lecturing  on  birth  control.  She  declined  the  alter- 
native of  paying  a  fine  of  $100  and  was  led  out  while 
several  hundred  sympathizers  applauded. 

A  squad  of  policemen  guarded  the  courtroom  against 
disturbance,  and  hundreds  came  as  to  a  play  with 
Emma  Goldman  in  the  leading  role. 


FREEDOM    OF    PERSONALITY  455 

The  case  was  tried  before  Justices  Herbert,  Moss 
and  O'Keefe.  Miss  Goldman  acted  as  her  own  coun- 
sel. Assistant  District  Attorney  linger  called  only 
two  witnesses  to  prove  the  complaint,  Policemen  John 
Gaspers  and  Louis  Schilling,  who  heard  Miss  Gold- 
man's lecture  at  the  New  Star  Casino  on  April  8th. 

In  her  defense  Miss  Goldman  made  several  dis- 
courses on  the  moral,  social  and  economic  need  for 
birth  control.  She  called  only  one  witness,  Leonard 
Abbott,  who  was  not  allowed  to  testify  because  he  was 
not  at  the  lecture. 


Suffrage 

WILLIAMS  V.  MISSISSIPPI 

170  U.  S.  213 

It  was  declared  that  the  suffrage  qualifications  in 
the  Mississippi  constitution  "  do  not  on  their  face  dis- 
criminate between  the  white  and  negro  races,  and  do 
not  amount  to  a  denial  of  the  equal  protection  of  the 
law  secured  by  the  Fourteenth  Amendment  to  the  Con- 
stitution, and  it  has  not  been  shown  that  their  actual 
administration  was  evil,  but  only  that  evil  was  pos- 
sible under  them."  Cf.  also  Giles  v.  Harris,  189  U.  S. 
474. 

In  the  Cyclopedia  of  American  Government,  Article 
"  Suffrage,"  Vol.  Ill,  p.  446,  it  is  said  "  If  the  penalties 
for  disfranchisement  decreed  by  the  Fourteenth 
Amendment  were  enforced,  it  would  mean  the  loss  of 


456  THE    PUBLIC    CONSCIENCE 

at  least  three  representatives  in  Congress  to  such  a 
state  as  Louisiana  or  Mississippi.  But  Congress  is  not 
likely  to  take  upon  itself  the  enforcement  of  the 
penalty,  for  the  ratification  of  those  amendments  was 
procured  only  by  counting  the  vote  of  states  which 
acted  under  duress,  and  the  requirement  of  such  rati- 
fication as  a  prerequisite  to  readmission  is  considered 
to  have  been  of  doubtful  constitutionality.  More- 
over, serious  doubt  has  been  growing  as  to  the  justice 
and  the  expediency  of  the  suffrage  conditions  which 
were  forced  upon  the  southern  states.  The  foremost 
leaders  among  the  negroes  themselves  have  avowed 
their  approval  of  both  property  and  educational  tests, 
if  fairly  administered,  since  each  of  them  would  serve 
as  a  spur  to  greater  efforts  on  the  part  of  the  negroes 
in  thrift  and  education." 


LOUISIANA  —  1898 

Art.  197,  Sec.  5 

"  No  male  person  who  was  on  January  1st,  1867,  or 
at  any  date  prior  thereto,  entitled  to  vote  under  the 
Constitution  or  statutes  of  any  state  of  the  United 
States,  wherein  he  then  resided,  and  no  son  or  grand- 
son of  any  such  person  not  less  than  twenty-one  years 
of  age  at  the  date  of  the  adoption  of  this  Constitution, 
and  no  male  person  of  foreign  birth,  who  was  natural- 
ized prior  to  the  first  day  of  January,  1898,  shall  be 
denied  the  right  to  register  and  vote  in  this  State  by 


FREEDOM    OF    PERSONALITY  457 

reason  of  his  failure  to  possess  the  educational  or 
property  qualifications  prescribed  by  this  Constitu- 
tion." 


NORTH  CAROLINA 

State  Constitution,  1915 

Article  VI,  Section  1.  —  Every  male  person  born 
in  the  United  States,  and  every  male  person  who  has 
been  naturalized,  twenty-one  years  of  age,  and  pos- 
sessing the  qualifications  set  out  in  this  article,  shall 
be  entitled  to  vote  at  any  election  by  the  people  in  the 
State,  except  as  herein  otherwise  provided. 

Section  4.  .  .  .  But  no  male  person  who  was  on 
January  1st,  1867,  or  at  any  time  prior  thereto,  entitled 
to  vote  under  the  laws  of  any  State  in  the  United 
States  wherein  he  then  resided,  and  no  lineal  descend- 
ant of  any  such  person,  shall  be  denied  the  right  to 
register  and  vote  at  any  election  in  this  State  by  reason 
of  his  failure  to  possess  the  educational  qualifications 
herein  prescribed. 

Virginia— 1902 

Article  II,  Sec.  19 

Every  male  citizen  of  the  United  States  having 
the  qualifications  of  age  and  residence  required  in 
section  Eighteen  shall  be  entitled  to  register,  if  he 
be:  — 


458  THE    PUBLIC    CONSCIENCE 

First:  —  A  person  who,  prior  to  the  adoption  of  this 
Constitution,  served  in  time  of  war  in  the  army  or 
navy  of  the  United  States,  of  the  Confederate  States, 
or  of  any  state  of  the  United  States  or  of  the  Con- 
federate States ;  or 

Second  —  A  son  of  any  such  person ;  or, 

Third  —  A  person,  who  owns  property,  upon  which, 
for  the  year  next  preceding  that  in  which  he  offers  to 
register,  state  taxes  aggregating  at  least  one  dollar 
have  been  paid;  or 

Fourth  —  A  person  able  to  read  any  section  of  this 
Constitution  submitted  to  him  by  the  oflBcers  of  regis- 
tration and  to  give  a  reasonable  explanation  of  the 
same;  or,  if  unable  to  read  such  section,  able  to  under- 
stand and  give  a  reasonable  explanation  thereof  when 
read  to  him  by  the  officers. 

Comment.  It  is  exceedingly  difficult  to  discover,  in  the 
statutes  of  the  states  south  of  Mason  and  Dixon's  line, 
direct  abridgments  of  the  rights  of  negroes  under  the 
Fourteenth  and  Fifteenth  Amendments  to  the  Constitu- 
tion. The  few  citations  here  given  will,  however,  be  suffi- 
cient to  indicate  the  sources  for  the  conviction,  very 
generally  held  and  not  disputed,  that  the  liberties  of 
negro  citizens,  as  guaranteed  by  the  Fourteenth  Amend- 
ment, are  in  fact  completely  ignored  in  most  southern 
states,  especially  in  those  with  a  very  large  negro  popula- 
tion. By  such  expedients  as  the  "  Grandfather  Clause  " 
so  called,  and  by  many  others  not  directly  traceable, 
southern  states  do  disfranchise  the  great  body  of  their 
negro  population.  I  am  not  concerned  here  either  to 
condemn  or  to  condone  the  fact.  The  fact  is  all  that 
concerns  our  present  purpose,  together  with  its  cause,  — 


FREEDOM    OF    PERSONALITY  459 

which  is,  without  question,  the  determination  on  the  part 
of  white  voters,  not  to  be  nulhfied  or  dominated  by  the 
blacks.  The  Constitution  is  disregarded  with  the  full 
knowledge  and  connivance  of  the  North.  There  was  a 
time  when  the  "  bloody  shirt  "  was  waved  on  all  occasions 
by  certain  northern  politicians  and  loud  promises  were 
made  that  the  political  freedom  of  the  blacks  would  be 
made  actual  as  well  as  nominal;  but  the  north  was  not 
free  from  blame  and  the  present  anomalous  situation  is 
practically  acquiesced  in  by  all  concerned.  It  must  then 
be  observed  that,  constitutional  guaranties  to  the  con- 
trary notwithstanding,  there  is  no  suffrage  equality  in 
the  United  States.  The  liberty  of  a  large  number  of  citi- 
zens, as  defined  by  the  Constitution,  is  abridged  in  the 
interest  of  the  public  peace. 


COMMONWEALTH  v.  SILSBEE 

Supreme  Judicial  Court  of  Massachusetts,  1812 

(Reported  9  Mass.,  417.    Beale,  41,  3d  ed.) 

The  offense  was  that  the  defendant  at  Salem,  for 
the  choice  of  town  officers,  "  did  then  and  there,  wil- 
fully, fraudulently,  knowingly  and  designedly  give  in 
more  than  one  vote  for  the  choice  of  selectmen,  etc." 

He  was  convicted  and  moved  in  arrest  of  judgment. 

The  Supreme  Court  confirmed  the  judgment  and 
fined  him  ten  dollars  together  with  the  costs  of  prose- 
cution. 

The  defense  was  on  technical  points  of  the  law,  there 
being  no  denial  that  the  defendant  had  knowingly 


460  THE    PUBLIC    CONSCIENCE 

cast  more  than  the  one  vote  to  which  he  was  entitled. 
The  Court  said,  "  There  cannot  be  a  doubt  that  the 
offense  described  in  the  indictment  is  a  misdemeanor 
at  common  law.  It  is  a  general  principle  that  where 
a  statute  gives  a  privilege,  and  one  wilfully  violates 
such  privilege,  the  common  law  will  punish  such  vio- 
lation. In  town  meetings  every  qualified  voter  has 
equal  rights,  and  is  entitled  to  give  one  vote  for  every 
officer  to  be  elected.  The  person  who  gives  more 
infringes  and  violates  the  rights  of  the  other  voters, 
and  for  this  offense  the  common  law  gives  the  indict- 
ment; and  the  conclusion  of  the  one  at  bar  is  proper 
for  the  case." 

COMMONWEALTH  v.  CALLAGHAN 
General  Court  of  Virginia,  1825 

(Reported  2  Virginia  Cases,  460.    Beale,  46,  3d  ed.) 

Two  justices  of  Allegheny  County,  Callaghan  and 
HoUoway,  were  candidates,  the  one  for  commissioner 
of  revenue,  the  other  for  clerk  of  court,  and  they  made 
a  bargain  to  vote  for  one  another  and  did  so  vote.  It 
was  alleged  in  the  indictment  that  they  acted  wickedly 
and  corruptly,  in  making  this  bargain. 

There  was  an  act  of  the  General  Assembly,  entitled 
"an  act  against  buying  and  selling  offices"  (1792). 
The  Court  decided  that  the  offense  did  not  fall  within 
this  act  "  because  the  plain  construction  of  the  statute 
is  that  the  penalties  which  it  denounces  are  incurred 


FREEDOM    OF    PERSONALITY  461 

only  by  those  who  receive  or  take  either  directly  or 
indirectly,  any  money,  profit,  etc.,  or  the  promise  to 
have  any  money,  profit,  etc.,  to  their  own  use  or  for 
their  own  benefit.  In  this  case  it  appears  that  the 
promise  of  each  of  the  defendants  to  the  other,  which 
constituted  the  consideration  of  the  vote  of  that  other, 
inured  not  to  the  benefit  of  the  defendants  or  either 
of  them  but  to  the  benefit  of  others.  If  indeed  it  had 
been  alleged  in  the  information  that  the  persons  for 
whom  the  votes  were  given,  were,  if  elected,  to  have 
held  them  upon  any  agreement,  that  the  defendants 
should  in  any  degree  participate  in  their  profits  or 
receive  from  the  holders  of  them  any  benefit  or  advan- 
tage, the  case  would  have  been  different,  for  then  the 
defendants  w^ould  have  received  a  profit  indirectly, 
and  thus  would  have  fallen  within  the  statute;  but 
there  is  no  such  allegation."  But  the  court  held  that 
the  offense  stated  in  the  information  was  a  misde- 
meanor at  common  law.  "  The  acceptance  of  every 
office  implies  the  tacit  agreement  on  the  part  of  the 
incumbent  that  he  will  execute  its  duties  with  dili- 
gence and  fidelity.  .  .  .  All  officers  are  punishable 
for  corruption  and  oppressive  proceedings,  according  to 
the  nature  and  heinousness  of  the  offense,  either  by  in- 
dictment, attachment,  action  at  the  suit  of  the  party 
aggrieved,  loss  of  their  offices,  etc.  .  .  .  Further, 
all  willful  breaches  of  the  duty  of  an  office  are  for- 
feitures of  it,  and  also  punishable  by  fine,  because  every 
office  is  instituted,  not  for  the  sake  of  the  officer,  but 
for  the  good  of  another  or  others;  and  therefore,  he 


462  THE    PUBLIC    CONSCIENCE 

who  neglects  or  refuses  to  answer  the  end  for  which 
his  office  was  ordained  should  give  way  to  others,  and 
be  punished  for  his  neglect  or  oppressive  execution." 
(Punishment  is  not  here  indicated). 

Comment.  Suffrage  cases  do  not  contain  any  philosophiz- 
ing. They  are  apt  to  be  mere  violations  of  a  statute  and 
the  reasoning  which  led  to  the  statute  is  supposed  to  be 
understood. 


Liberty  in  Family  Relations 
"TEACHER -MOTHER"  QUESTION 

Information  Annual,  1915,  p.  126 

John  H.  Finley,  State  Commissioner  of  Education 
for  New  York,  decided  on  January  11  in  the  case  of 
Mrs.  Peixotto,  that  a  teacher  may  not  be  dismissed 
because  she  absents  herself  from  school  to  bear  a  child. 
Under  existing  laws,  there  was  no  appeal  from  this 
decision.  At  a  meeting  of  the  Board  of  Education, 
held  in  New  York  City,  January  27,  action  on  the 
teacher-mother  question  was  deferred.  On  January 
28  Supt,  Maxwell  offered  Mrs.  Peixotto  her  former 
position.  Mrs.  Peixotto  resumed  her  duties  as  teacher 
in  New  York's  public  schools  February  1. 

The  Board  of  Education,  February  10,  restored  to 
duty  Mrs,  Lora  M.  Wagner,  of  the  Curtis  High  School, 
who  was  suspended  on  November  12,  1914,  and  six- 
teen other  mother  teachers  in  line  with  Commissioner 


FREEDOM    OF    PERSONALITY  463 

Finley's  recent  decision.  This  left  no  mother  teacher 
suspended  or  dismissed,  against  whom  no  charges  but 
absence  to  bear  children  had  been  made. 

An  amendment  to  the  by-laws  of  the  Board  of  Edu- 
cation was  made,  February  24,  providing  that  leave  of 
absence  of  two  years,  without  pay,  may  be  granted  by 
the  Board  of  Superintendents  to  principals  and  teach- 
ers for  the  purpose  of  bearing  children.  This  required 
the  repeal  of  the  section  of  the  by-laws  which  has 
prohibited  the  appointment  of  married  women  as 
teachers. 

The  appeal  of  Mrs.  Henrietta  Rodman  de  Fremery, 
usually  known  as  Henrietta  Rodman,  was  dismissed 
and  her  suspension  by  the  New  York  Board  of  Edu- 
cation from  November  13,  1914,  to  September  1,  1915, 
without  pay,  was  affirmed  on  June  8th  by  Dr.  John 
H.  Finley,  Commissioner  of  Education.  Charges  were 
preferred  against  Henrietta  Rodman  for  publishing 
in  a  New  York  paper  a  letter  which  characterized 
the  action  of  the  Board  of  Education  in  its  con- 
sideration of  the  teacher-mother  cases  as  "  mother- 
baiting." 

The  Chicago  school  management  committee  in- 
structed Superintendent  Ella  Flagg  Young,  March  12, 
to  draw  up  a  new  rule  providing  that  teachers  in  pub- 
lic schools  may  become  mothers  without  suffering  the 
loss  of  their  positions ;  but  once  mothers  they  must  stay 
out  of  the  schools  for  two  years  and  devote  these  years 
entirely  to  the  child's  interest.    When  returning  to 


464  THE    PUBLIC    CONSCIENCE 

school  duties  they  must  show  that  the  child  is  receiving 
proper  care  and  not  being  neglected  because  of  its 
mother's  teaching  activities. 
New  York  Times. 

Mrs.  K.  E.,  instructor  in  physical  training  in 
Erasmus  Hall  High  School,  Brooklyn,  N.  Y.,  was  dis- 
missed in  1913.  When  Mrs.  E.  knew  that  she  was 
about  to  become  a  mother  she  applied  for  leave  of 
absence  without  pay,  giving  her  reason.  Leave  of 
absence  was  refused  her,  although  it  was  intimated  to 
her  that  if  she  would  make  a  new  application  giving 
"  ill  health  "  as  her  reason,  it  would  be  allowed  her. 
The  reason  for  this  attitude  was  that  the  Board  of 
Education  would  not  go  on  record  as  giving  a  teacher 
leave  to  bear  a  child. 

Mrs.  E.  made  a  test  case  of  her  application.  After 
the  birth  of  her  child,  on  the  following  September, 
she  returned  to  school  and  taught  there,  without  pay, 
until  December,  when  she  was  notified  that  she  had 
been  summarily  dismissed  from  the  force. 

Mrs.  G.,  clerical  assistant  at  the  Curtis  High 
School,  New  Brighton,  Staten  Island,  N.  Y.,  was  dis- 
missed from  the  service  by  the  Board  of  Education  on 
January  1,  1914,  because,  as  alleged,  she  made  false 
statements  about  her  absence  from  the  school,  which 
was  due  to  the  birth  of  her  child.  The  vote  for  her 
dismissal  was  unanimous,  the  women  commissioners 
voting  with  the  others. 


FREEDOM    OF    PERSONALITY  465 

Association 

IN   RE    OPINION   OF   THE   JUSTICES 
(HOUSE  DOC.  NO.  377) 

Supreme  Judicial  Court  of  Massachusetts 

(May  8,  1912) 
(98  Northeastern  Reporter,  page  377.    112  Bui.  Lab.  St.,  118.) 

At  the  session  of  the  legislature  of  Massachusetts 
held  in  1912  there  was  considered  by  that  body  a  bill 
practically  identical  in  form  and  effect  with  the  j5rst 
paragraph  of  the  fourth  section  of  the  British  Trade 
Disputes  Act  of  1906.    The  bill  was  as  follows :  — 

An  action  against  a  trade  union  or  an  association 
of  employers  or  against  any  members  or  officials 
thereof  on  behalf  of  themselves  and  of  other  members 
of  a  trade  union  or  association  of  employers  in  respect 
to  a  tortious  act  alleged  to  have  been  committed  by  or 
on  behalf  of  a  trade  union  or  association  of  employers 
shall  not  be  entertained  by  any  court. 

This  was  referred  to  the  supreme  judicial  court  of 
the  state  with  the  question  as  to  its  constitutionality 
if  enacted,  the  question  being  answered  by  a  unani- 
mous bench  in  the  negative. 

The  opinion  of  the  court  is  given  in  full: 

The  Constitution  of  the  United  States  in  Article  14 
of  the  Amendments,  expressly  provides  that :  No  state 
shall  "  deprive  any  person  of  life,  liberty,  or  property, 


466  THE    PUBLIC    CONSCIENCE 

without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws."  Absolute  equality  before  the  law  is  a  funda- 
mental principle  of  our  own  Constitution.  Frequent 
expressions  to  this  effect  are  found  in  various  articles. 
For  example,  it  is  said  that  "  all  men  are  born  free  and 
equal" ;  that  "  each  individual  of  the  society  has  a 
right  to  be  protected  by  it  in  the  enjoyment  of  his 
life,  liberty,  and  property,  according  to  standing  laws"; 
that  "  every  subject  of  the  Commonwealth  ought  to 
find  a  certain  remedy,  by  having  recourse  to  the  laws, 
for  all  injuries  or  wrongs  which  he  may  receive  in  his 
person,  property  or  character  " ;  and  that  the  several 
departments  of  government  are  separated  "  to  the  end 
it  may  be  a  government  of  laws  and  not  of  men." 
—  Declaration  of  Rights,  arts.  1,  10,  11  and  30. 

The  proposed  bill  to  exempt  associations  of  em- 
ployers and  trade  unions  and  their  members  and 
officials  from  actions  of  tort  committed  by  or  on  behalf 
of  such  association  or  union  is  plainly  contrary  to  these 
constitutional  guaranties.  It  gives  to  certain  favored 
ones,  selected  arbitrarily,  immunity  from  that  equal 
liability  for  civil  wrongs  which  is  a  sign  of  equality 
between  citizens  and  residents.  It  undertakes  to 
clothe  combinations  of  employers  and  laborers  with 
special  power  denied  to  other  employers  and  laborers 
and  other  members  of  society.  In  another  aspect,  it 
deprives  all  individuals  and  associations,  other  than 
those  named,  of  the  protection  to  safety,  liberty  and 
property  which  any  free  government  must  secure  to  its 


FREEDOM    OF    PERSONALITY  467 

subjects.  It  takes  from  them  the  unhampered  right  to 
assert  in  the  courts  claims  against  all  who  tortiously 
assail  their  person  and  property  and  to  recover  judg- 
ment for  the  injuries  done.  It  would  prevent  all  per- 
sons from  having  recourse  to  law  for  vindication  of 
rights  or  reparation  for  wrongs  against  the  privileged 
few  therein  designated.  It  imposes  upon  some  bur- 
dens of  which  others  in  like  situations  are  released. 
It  throws  obstacles  in  the  pathway  of  those  outside 
unions  or  associations  in  the  pursuit  of  their  liveli- 
hood and  in  the  prosecution  of  their  business  not 
interposed  in  the  way  of  members  of  such  organiza- 
tions. It  purposes  to  give  to  one  class  of  wage  earners 
advantages  withheld  from  others  not  belonging  to  a 
trade  union  who  are  engaged  in  the  same  kind  of 
work  and  for  the  same  employer.  It  frees  one  set  of 
employers  from  obligations  to  which  their  competitors, 
who  are  independent  of  the  association,  are  subjected. 
In  short,  it  destroys  equality  and  creates  special 
privilege. 

Manifestly,  it  needs  no  discussion  and  no  further 
statement  to  demonstrate  that  legislation  like  that 
embodied  in  the  bill  would  violate  in  many  respects 
underlying  principles  and  fundamental  provisions  of 
the  Constitution  of  this  Commonwealth  and  of  the 
United  States. 

Comment.  The  right  of  association  is  taken  for  granted. 
There  is  no  interference  with  such  liberty  apparent  here. 
This  case  is  given  to  illustrate  the  principle  of  associa- 
tion  in   action  and   also   because  there   are   reiterated 


468  THE    PUBLIC    CONSCIENCE 

certain  '*  liberty  ideals  "  upon  which  the  whole  of  our 
legislation  is  built.  That  some  of  these  ideals  are  grossly- 
unrealistic  (e.g.  that  "  all  men  are  born  free  and  equal  ") 
does  not  derogate  in  any  way  from  the  role  which  they 
have  played  in  forming  the  statute  law  of  the  United 
States. 

Speech  —  Birth  Control 

New  York  Times,  1916. 

Mrs.  Sanger  and  others  were  arrested  for  spreading 
information  on  this  subject  at  a  clinic  in  Brownsville 
on  October  28,  1916.  It  was  announced  on  October 
30  that  the  subject  would  be  fought  by  the  School  of 
Sociology  of  Fordham  University  (Roman  Catholic). 
October  31  Miss  J.  Ashley  was  convicted  and  fined 
for  circulating  birth  control  literature.  Mrs.  Sanger 
was  held  for  trial  November  7,  released  on  bail,  re- 
opened her  clinic  and  was  rearrested  November  16  on 
the  charge  of  maintaining  a  public  nuisance. 

Meanwhile  a  lively  public  discussion  of  the  advisa- 
bility of  the  propaganda  took  place.  Discussions  took 
place  at  medical  societies  and  many  prominent  phy- 
sicians put  themselves  on  record  as  approving  of  the 
movement.  The  subject  was  also  discussed  at  a  meet- 
ing of  the  American  Association  for  the  Advancement 
of  Science,  December  27,  1916.  A  public  meeting 
was  held,  addressed  by  prominent  citizens,  the  call  for 
this  being  signed  by  distinguished  men  and  women. 

Mrs.  Byrne,  a  sister  of  Mrs.  Sanger,  who  had  taken 
part  in  the  propaganda,  was  imprisoned  and  forcibly 
fed  to  keep  her  alive,  as  she  had  gone  on  hunger  strike. 


FREEDOM    OF    PERSONALITY  469 

Mrs.  Sanger  was  also  imprisoned  early  in  1917  but 
did  not  resist.  She  completed  her  sentence  in  entire 
quietness. 

Comment.  Objections  to  birth  control  propaganda  are 
chiefly  two —  (1)  That  it  is  opposed  to  the  revealed  will 
of  God,  and  (2)  that  it  would  be  a  direct  blow  at  the 
manhood  force  of  the  nation.  Then  there  is  the  ob- 
jection that  it  would  lead  to  an  increase  of  license  in 
sex  relations.  If  the  opinion  of  the  time  coincides  with 
either  of  these  views  birth  control  advocates  will  not 
be  allowed  to  pursue  their  propaganda. 

Miscellaneous 

110  Pacific  Reporter  (?)  1020. 

A  statute  of  the  Washington  legislature  providing 
that  insanity  should  be  no  defense  in  criminal  actions 
but  that  the  presiding  judge  might,  at  his  discretion, 
commit  to  an  insane  asylum  any  person  convicted  who, 
in  his  opinion,  was  insane,  was  held  unconstitutional 
because  it  violated  the  "  due  process  of  law  clause  of 
the  Constitution,"  and  also  the  right  of  trial  by  jury. 

Cleveland  Plain  Dealer,  January  5,  1914. 

"  Mother "  Jones,  labor  leader,  was  seized  by  the 
militia  upon  her  arrival  at  Trinidad,  Colorado,  from 
El  Paso,  taken  from  a  Santa  Fe  train,  held  for  two 
hours  and  deported  from  the  strike  district.  She  was 
ordered  never  to  return  to  the  district.  There  is  no 
further  indication  of  the  ground  on  which  she  was 
silenced.    It  is,  however,  a  matter  of  common  knowl- 


470  THE    PUBLIC    CONSCIENCE 

edge  that  she  was  a  powerful  influence  among  the  strik- 
ing miners. 

Comment.  This  action  was  under  martial  law  by  which 
many  interferences  with  liberty  are  commonly  justified 
in  the  name  of  the  safety  of  the  state. 

THE   NATURAL   LAW    OF   LIBERTY 

The  cases  under  the  foregoing  classification  are 
sharply  differentiated.  In  the  first  small  group  the 
principle  is  evident  that  no  one  shall  interfere  with 
the  freedom  or  liberty  of  the  individual  in  the  way 
of  forcible  restraint,  not  even  the  State.  Slavery  is  no 
longer  practised  except  surreptitiously  under  any  so- 
called  "  civilized  "  government.  It  is  taboo.  So  with 
all  the  subordinate  forms  of  which  it  is  the  chief. 
That  practical  slavery  and  actual  peonage  do  exist  to- 
day under  civilized  government  is  true;  but  they  exist 
sub  rosa  and  when  exposed  in  their  true  light  are  abol- 
ished. I  have  not  thought  it  exact  to  include  what  is 
sometimes  called  wage  slavery  here.  It  is  hyperbolical 
to  call  this  slavery,  whatever  it  may  be,  and  however 
undeniable  in  a  modern  state;  besides  the  state's  atti- 
tude toward  this  is  somewhat  indicated  under  "  police 
regulations." 

The  genuineness  of  the  public  conscience  on  this 
point  is  hardly  open  to  doubt.  No  state  today  tolerates 
lettres  de  cachet;  and  the  writ  of  habeas  corpus  is  a 
practical  guarantee  against  false  imprisonment.  Trial 
by  jury,  by  which  was  meant  trial  by  one's  peers,  is 


NATURAL    LAW    OF    LIBERTY  471 

another  means  employed  to  attain  this  practical  free- 
dom. Constitutional  prohibition  of  excessive  fines  and 
bail,  requirement  of  "  due  process  of  law,"  etc.,  are 
other  indications  of  the  genuineness  of  the  desire  that 
individuals  shall  be  free  from  constraint.  That  it  does 
not  work  out  always  in  this  way  is  nothing  to  the 
point.  That  is  a  matter  for  social  reform.  The  con- 
science of  the  state  is  perfectly  clear  that  no  man  shall 
of  his  own  motion  and  for  his  own  ends  coerce  another 
into  any  kind  of  bondage.  The  Emancipation  Procla- 
mation of  Lincoln,  while  avowedly  adopted  as  a  war 
measure,  had  yet  been  preceded  by  so  long  and  vigor- 
ous an  educational  campaign  that  when  the  proclama- 
tion was  made  it  settled  for  all  time  the  pohcy  of  the 
United  States  of  America.  The  policy  of  the  world  is 
in  agreement  with  this.  Even  Nevinson's  account  of 
the  very  genuine  slavery  practised  in  Portuguese 
West  Africa  is  no  exception,  for  this  was  not  a  govern- 
ment measure  but  the  result  of  the  corruption  of  in- 
dividual officials. 

But  every  remaining  case,  however  different  it  may 
be  in  character  from  the  others,  belongs  properly  in  the 
class  of  restraints  upon  liberty.  These  cases  illustrate 
what  liberty  is  in  a  modern  state.  It  is  checked  by 
restrictions  upon  Freedom  of  Movement.  Under  this 
heading  we  find  Ghettoes.  Now  ghettoes  exist  in  many 
countries  as  a  practical  fact.  In  Russia  at  least  they 
were  legal  before  the  Great  War,  while  they  are  quite 
illegal  and  substantially  non-existent  in  English  speak- 
ing countries  and  most  others;  but  all  the  other  in- 


472  THE    PUBLIC    CONSCIENCE 

stances  are  avowed,  legal,  and  probably  permanent,  re- 
strictions upon  freedom  of  movement.  At  least  the 
principle  is  permanent  that  freedom  to  come  and  go 
is  entirely  dependent  upon  public  policy. 

Under  interference  with  freedom  of  action  there  is  a 
wide  variety  of  cases.  "  Carrying  weapons  "  comes  of 
course,  equally  with  the  following  division,  under 
Police  Regulations,  but  this  has  a  character  of  its  own. 
The  people  are  constitutionally  guaranteed  the  "  right 
to  bear  arms  "  but  that  right  can  only  be  exercised  in 
accordance  with  the  law. 

Police  regulations  as  I  have  used  the  term  here 
include  not  only  ordinary  policing  but  what  has  come 
to  be  called,  particularly  in  America,  the  police  power 
of  the  state.  While  the  term  is  peculiarly  American, 
the  fact  is  universal.  The  cases  cited  here,  and  a  thou- 
sand others  which  might  be  cited,  make  it  plain  that 
anything  which  menaces  the  safety,  honor  and  welfare 
of  the  people  will  be  forbidden,  and  that  entirely  re- 
gardless of  whether  the  constitution  be  counted 
supreme  or  the  legislature;  which  it  is  to  be  being 
wholly  a  question  of  political  expediency.  But  police 
power  is  positive  as  well  as  negative.  Recent  deci- 
sions such  as  those  affecting  hours  of  labor,  health  con- 
ditions, etc.,  show  that  anything  will  be  ordered  which 
is  for  the  interest  of  the  whole.  Not  even  the  venerable 
freedom  of  contract  can  stand  in  the  way  of  this.  Nor 
can  the  sacred  principle  of  free  competition  and  oppo- 
sition to  monopoly.  All  that  need  be  proved  is  the 
fact  of  interference  with  the  welfare  of  the  group  — 


i 


NATURAL    LAW    OF    LIBERTY  473 

such  action  will  be  condemned ;  or  that  an  act  ministers 
to  the  welfare  of  the  group,  it  will  be  approved.  Mr. 
Justice  Holmes  in  Hudson  County  Water  Co.  v.  Mc- 
Carter  (q.v.)  has  shown  to  what  extent  the  police 
power  may  interfere  with  the  so-called  right  of  private 
property.  This  leads  me  to  say  that  it  is  obvious  that 
there  are  no  natural  rights  outside  the  state,  and  the 
state  will  deprive  any  man  of  these  rights,  which  it 
guarantees  him,  the  moment  that  they  conflict  with 
state  interests.  If  it  is  a  constitutional  government 
it  will  not  do  this  without  due  process  of  law;  but  it 
will  deprive  him  none  the  less  and,  in  war  time,  if 
necessary,  without  due  process  of  law  and  without  com- 
pensation. This  will  be  further  dealt  with  in  speak- 
ing of  eminent  domain.  The  position  which  I  have 
here  taken  is  supported  by  the  combined  judgments  of 
Chief  Justice  White  in  Allgeyer  v.  Louisiana  and  of 
Mr.  Justice  Hughes  in  C.  B.  &  Q.  R.  R.  v.  McGuire, 
the  one  modifying  the  other.  The  police  power  has 
been  differentiated  from  eminent  domain.  It  has 
been  said  ^  that  the  police  power  fetters  the  rights  of 
property,  eminent  domain  takes  them  away;  but  it 
is  merely  a  difference  of  degree.  The  important  thing 
is  to  observe  that  the  state  is  supreme  and  that  the 
offenses  pointed  out  under  Police  Regulations  and 
Freedom  in  Property  Rights  are  not  necessarily  perma- 
nent. The  offense  consists  not  in  anything  inherent 
in  the  act  but  only  in  its  being  conceived  to  be  detri- 
mental to  the  group  interest.  The  present  day  laws 
"■  Note.  —  Article  Eminent  Domain  in  11th  ed.    Encyc.  Brit. 


474  THE    PUBLIC    CONSCIENCE 

may  be  completely  reversed;  but  it  is  safe  to  say 
that,  if  they  are  reversed,  it  will  be  for  the  same  reason 
that  they  now  hold,  viz.:  their  relation  to  the  con- 
ceived welfare  of  the  group. 

The  various  cases  given  under  Interference  with 
Freedom  in  Property  Rights  show  conclusively  that 
property  is  in  no  situation  absolute.  The  state,  as  well 
as  its  various  subdivisions,  taxes  —  i.e.  seizes  property 
without  property  compensation.  Franchises,  rights  of 
way,  right  to  do  what  one  will  with  one's  own  (admis- 
sion to  hotels  and  theaters)  rights  to  charge  what  one 
will  for  one's  services,  (rate  regulation  of  railroads, 
etc.),  contracts  and  many  similar  property  rights  are 
held,  not  precariously  indeed,  but  very  definitely  under 
the  will  of  the  State;  and  in  Eminent  Domain  this 
principle  finds  its  fullest  and  most  overt  expression. 
While  constitutional  countries  habitually  do  recom- 
pense those  whose  property  is  seized,  it  often  occurs 
that  no  compensation  in  money  or  goods  can  adequately 
compensate.  One  does  not  want  one's  ancestral  home 
destroyed  even  if  the  condemnation  price  is  more  than 
the  home  is  worth  commercially;  but  this  makes  no 
difference.  Absolute  property,  according  to  statutes 
and  the  common  law  very  evidently  inheres  in  the 
State  alone. 

In  time  of  war  this  principle  is  seen  working  simply 
and  boldly  in  the  open.  The  State  commandeers  any- 
thing that  is  useful  or  is  thought  to  be  useful. 

Under  Interference  with  Freedom  in  Personality  I 
have  grouped  a  number  of  cases  which  only  very  in- 


NATURAL    LAW    OF    LIBERTY  475 

directly  have  to  do  with  the  preservation  of  life  or 
property.  They  are  cases  which  illustrate  the  voli- 
tional life  of  man,  the  things  which  he  purposes  to  do 
with  his  Ufe.  There  is  a  tradition  that  these  things 
are  sacred,  that  no  government  can  touch  them.  Much 
eloquence  has  been  wasted  to  prove  that  these  repre- 
sent inviolable  rights  par  excellence.  The  simple  reply 
to  all  this  is  that  the  State  does  not  interfere  with 
them.  A  man  may  marry  or  cohabit  with  whom  he 
pleases  but  must  do  as  the  State  bids  or,  rather,  must 
not  do  what  the  State  forbids.  His  worship  is  subject 
to  the  same  restrictions.  We  have  a  tradition  that  here 
every  man  is  free  to  worship  God  as  his  conscience  dic- 
tates. One  has  but  to  recall  the  prohibition  of  polyg- 
amy to  the  Mormons,  the  prison  sentences  of  "  Elijah  " 
Sanford,  "  Holy  Ghost "  Schlaetter  and  many  others, 
the  suppression  of  various  sects  which  have  made  sex 
too  central  for  the  tastes  of  society,  and  the  prosecu- 
tions of  Christian  Scientists,  to  realize  that  when  re- 
ligion takes  an  outward  form  in  actions  which  disturb 
the  tcLste  of  the  group,  it  has  no  more  freedom  than 
any  other  form  of  opposition. 

Among  our  cherished  shibboleths  are  freedom  of 
speech,  of  the  press,  manhood  suffrage,  the  right  to 
associate  with  whom  we  please  and  anywhere ;  and  most 
important  of  all,  the  right  of  self  expression,  of  advo- 
cating with  overt  acts  that  which  we  most  earnestly 
desire  to  see  come  to  pass.  Now  a  very  valuable  and 
interesting  book  could  be  written  to  show  the  progress 
made  by  the  world  in  securing  these  desiderata  of  man- 


476  THE    PUBLIC    CONSCIENCE 

kind;  but  whatever  progress  has  been  made,  whatever 
progress  shall  hereafter  be  made  in  securing  these 
things  it  is  evident  that  freedom  in  personality,  like 
freedom  of  body  or  property  is,  after  all,  only  relative. 
The  State  does  not  today  permit  slavery.  It  is  prob- 
able that  slavery  will  never  again  exist  in  a  civilized 
state  and  that  many  existent  forms  of  "  commercial 
slavery"  will  be  modified  if  not  entirely  wiped  out; 
but  so  long  as  imprisonment  exists  there  is  no  absolute 
freedom  of  person.  So  with  property,  so  with 
personality. 

It  may  seem  to  some  that  I  have  gone  a  roundabout 
way  to  demonstrate  the  obvious.  If  I  have  demon- 
strated it  I  shall  be  content.  There  is  so  much  loose 
and  inexact  talk  about  liberty  that  it  is  well  to  know 
precisely  in  what  that  liberty  consists.  I  have  not 
sought  in  this  book  either  to  arouse  enthusiasm  for 
any  cause  or  to  stir  men  to  action.  The  first  chapter 
showed,  clearly,  I  hope,  that  there  is  a  marked  differ- 
ence between  ethics  as  science  and  as  art.  These  cases 
all  have  to  do  with  a  very  narrow  but  fundamental 
region  of  conduct  in  which  the  word  duty  is  inevitably 
related  to  man's  attitude  toward  the  State  and  the 
State's  attitude  toward  him.  The  State's  prohibitions 
and  commands  may  rest  upon  unsound  political  prin- 
ciples and  unworthy  superstitions;  but  if  one  resists 
them  he  does  so  at  his  own  peril. 

It  would  be  inexact  to  leave  this  subject  without 
pointing  out  that  cases  under  all  the  previous  classifi- 
cations have  dealt  with  the  positive  side  of  man's 


NATURAL    LAW    OF    LIBERTY  477 

liberty,  the  very  large  field  in  which  his  will  is  defended 
by  the  State  against  all  comers  except  the  State  itself 
—  and  even  against  the  State  in  the  form  of  constitu- 
tional guarantees.  The  State  is  indeed  often  weakened, 
in  a  democracy,  by  these  very  constitutional  guaran- 
tees. "  Martyrs  to  conscience "  are  sometimes  sup- 
ported by  the  very  laws  which  have  made  their  rebel- 
lion possible  and  dangerous  to  the  further  existence  of 
the  State. 

But  the  one  thing  that  stands  out  clearly,  as  I  think, 
from  all  these  multitudes  of  cases,  multitudes  not  be- 
cause of  the  actual  number  contained  in  this  book  but 
because  of  the  thousands  which  are  too  obvious  to  be 
set  down,  is  that  the  group  is  sovereign  and  absolute. 
Should  all  these  groups  one  day  coalesce,  then  that 
which  the  Group  of  Groups  ordains  will  be  the  su- 
preme command  for  man  in  society.  His  highest 
obligation  as  a  social  being  will  be  to  do  whatever 
ministers  to  the  well  being  of  the  group  in  the  opin- 
ion of  those  who  are  chosen  to  represent  it.  No  de- 
fiance of  this  will  ever  be  justified  by  the  group  itself. 
Any  justification  which  such  a  defiance  may  expect 
must  come  from  some  other  source.  It  is  not  the  pro- 
vince of  this  book  to  enter  into  that  question. 

Treason  is  never  forgiven  if  known  to  exist;  and  it 
will  always  be  punished  with  death,  or  the  social  equi- 
valent of  death,  expulsion  from  the  group  or  close  con- 
finement, whenever  it  is,  or  seems  to  be,  dangerous  to 
the  further  continuance  of  the  group. 


INDEX  OF  CASES 


INDEX  OF  CASES 

The  abbreviations  used  in  citing  the  law  reports  of  Great  Britain 
and  the  United  States  are  too  numerous  to  justify  indexing  or  ex- 
plaining them.  Any  law  library  will  furnish  such  information.  For 
the  purposes  of  this  book  such  explanation  is,  however,  unnecessary. 
The  references  have  been  given  as  a  guaranty  of  good  faith  on  my 
part;  and  also  in  order  that  the  cases  may  prove  useful  for  further 
research  on  the  part  of  special  students. 


But  Full  Reference  to  Sources  is  Given  on  Pages 
Noted  Below 


Adair  v.  United  States,  p.  443 
Alabama  v.  Pixley,  p.  103 
Allgeyer  v.  Louisiana,  p.  361 
American  Stay   Co.  v.  Delaney, 
p.  318 

Bakers'  Case,  p.  411 
Bamford  v.  Turnley,  p.  240 
Becker  Case,  p.  93 
Bevan  v.  Waters,  p.  222 
Bosworth  V.  Inhabitants  of  Swan- 
sea, p.  338 
Broadwood  v.  Granara,  p.  227 
Brown  v.  Robbins,  p.  250 
Bullock  V.  Babcock,  p.  232 
Bush   V.  New  York  Life  Insur- 
ance Co.,  p.  433 

Caldwell  V.  Tutt,  p.  224 
Charles  River  Bridge  v.  Warren 

Bridge,  p.  432 
Citizens    Rapid    Transit    Co.    v. 

Dew,  p.  258 


Clark  V.  State,  p.  196 
Colonel  Sexby,  p.  161 
Commonwealth  v.  Adams,  p.  135 
Commonwealth  v.  Callaghan,  p. 

460 
Commonwealth  v.  Campbell,  p. 

112 
Commonwealth   v.  Churchill,  p. 

342 
Commonwealth  v.  Gibney,  p.  381 
Commonwealth  v.  Hays,  p.  206 
Commonwealth   v.   Marshall,  p. 

341 
Commonwealth  v.  Mink,  p.  107 
Commonwealth   v.  Sharpless,  p. 

335 
Commonwealth  v.  Silsbee,  p.  459 
Commonwealth    v.    Webster,    p. 

85 
Commonwealth  v.  White,  p.  132 
Coppage  V.  Kansas,  p.  397 


Denver    Jobbers   Association    v. 


481 


482 


INDEX   OF   CASES 


People,  p.  312 
Euthanasia,  p.  145 

Fletcher  v.  Peck,  p.  237 
Fotheringham  v.  Adams  Express 

Co.,  p.  375 
Frank  Case,  p.  154 

Garrison   v.   The    City    of   New 

York,  p.  236 
Geer  v.  Connecticut,  p.  452 
General  Slocum  Case,  p.  117 
Gilbert  v.  Showerman,  p.  245 
Giozza  V.  Tiernan,  p.  390 
Goddard  v.  Winchell,  p.  219 

Hamilton  v.  Lomax,  p.  322 
Hanna  v.  Phelps,  p.  220 
Hardie-Tynes  Mfg.  Co.  v.  Cruse, 

p.  314 
Higginson  v.  York,  p.  231 
Holmes's  Case,  p.  188 
Hudson    County    Water    Co.    v. 

McCarter,  p.  431 

In  Re  Opinion  of  the  Justices, 

p.  465 
In  Re  Debs,  p.  438 

Jackson  v.  Cummins,  p.  225 
Judson  V.  Etheridge,  p.  223 

Lochner  v.  New  York,  p.  411 
Lynch  Law,  p.  151 

Marinelli     v.     United     Booking 

Offices,  p.  427 
Mitchell  V.  State,  p.  164 
Mogul  Steamship  Company  Ltd. 

V.  McGregor,  p.  408 
Moyer  v.  Peabody,  p.  377 
Munn  V.  Illinois,  p.  386 


Naylor  v.  Mangles,  p.  221 

Ohio  V.  Horton,  p.  199 
Ourish   Case,  p.   99 

Parker  v.  Godin,  p.  208 
People  V.  John  Most,  p.  333 
People  V.  Ruggles,  p.  328 
People  V.  Tomlins,  p.  128 
People  V.  Wallace  and  Lake,  p. 

344 
Pitts  V.  Lancaster  Mills,  p.  256 
Plew-Wakefield  Case,  p.  97 
Plumley  v.  Massachusetts,  p.  293 

Race  V.  Ward,  p.  230 
Regina  v.  Barnes,  p.  205 
Regina   v.   Bradshaw,   p.   119 
Regina  v.  Closs,  p.  303 
Regina  v.  Dadson,  p.  133 
Regina  v.  Holland,  p.  100 
Regina  v.  Hudson,  p.  198 
Regina  v.  Salmon,  p.  109 
Regina  v.  Stephens,  p.  347 
Regina  v.  Tolson,  p.  217 
Rex  V.  Compton,  p.  147 
Rex  V.  Francis,  p.  185 
Rex   V.  Ivins,  p.  441 
Rex  V.  Lynn,  p.  334 
Rex  V.  Se>Tnour,  p.  201 
Rex  V.  Smith,  p.   101 
Rex  V.  Sutton,  p.  305 
Rex  V.  Tibbits,  p.  323 
Rex  V.  William  Smith,  p.  343 
Roberts     v.     Groyfrai     District 
Council,  p.  254 

St.  Helen's  Smelting  Co.  v.  Tip- 
ping, p.  244 

Seward  v.  Seaboard  Air  Line 
Railway,  p.  420 

Sinn  Fein  Rebellion,  p.  276 

Slaughter  House  Cases,  p.  435 


INDEX    OF    CASES 


483 


Spies  V.  People,  p.  114 

State  V.  Baldwin,  p.  332 

State  V.  Endsley,  p.  378 

State  V.  Holt,  p.  270 

State  V.  J.  J.  Newman  Lumber 

Co.,  p.  400 
State  V.  Lay,  p.  417 
State  V.  Linkham,  p.  330 
State  V.  Mayor  and  Aldermen  of 

Knoxville,  p.  273 
State  V.  William  Beck,  p.  136 
State  of  Kansas  v.  George  Lewis, 

p.  271 
State     of     Nebraska     v.     Tim 

O'Rourke  et  al.,  p.  337 
Stockport   Water  Works  Co.  v. 

Potter,  p.  251 
Stokes  V.  State,  p.  284 
Storey  v.  State,  p.  149 
Streeter     v.    Western    Wheeled 

Scraper  Co.,  p.  286 
Sturges  V.  Bridgman,  p.  248 
Suicide,  p.  131 
Sutton  V.  Town  of  Wauwatosa, 

p.  340 

Taylor's   Case,   p.   327 


Teacher-Mother  Cases,  p.  462 
Terry  v.  McDaniell,  p.  451 
Threefall  v.  Borwick,  p.  228 
Thorley  v.  Lord  Kerry,  p.  325 
Treason  Treated  by  Lynch  Law, 

p.  279 
Trial  by  Combat,  p.  141 
Triangle  Waist  Co.  Case,  p.  110 

Underwood  v.  Texas  Pacific  Rail- 
way Co.,  p.  393 

United  Shoe  Machinery  Co.  v. 
La  Chappelle,  p.  446 

United  States  v.  Van  Schaick,  p. 
117 

United  States  v.  Agler,  p.  307 

United  States  v.  Holmes,  p.  129 

United  States  v.  Standard  Oil 
Company  of  New  Jersey,  p.  404 

Unwritten  Law,  p.  163 

Wager  of  Battle,  p.  138 
Warren  v.  Buck,  p.  235 
Williams  v.  Mississippi,  p.  455 
Willy  V.  Mulledy,  p.  127 
Wong  Wing  v.  United  States,  p. 
371 


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